Sexual Violence Bench Book - 000723

Pennsylvania Pennsylvania
Crimes of Sexual Violence Crimes of Sexual Violence

Benchbook Benchbook
Third Edition Third Edition
2015 2015
The Honorable Jack A. Panella The Honorable Jack A. Panella

Superior Court of Pennsylvania Superior Court of Pennsylvania
_____________________________________________________________________________ _____________________________________________________________________________
This Benchbook on Crimes of Sexual Violence in Pennsylvania is published by the Administrative This Benchbook on Crimes of Sexual Violence in Pennsylvania is published by the Administrative
Office of Pennsylvania Courts (AOPC) through funds provided by the Pennsylvania Coalition Office of Pennsylvania Courts (AOPC) through funds provided by the Pennsylvania Coalition
Against Rape (PCAR). PCAR applied for federal funds to cover these expenses, and the funds were Against Rape (PCAR). PCAR applied for federal funds to cover these expenses, and the funds were
channeled through the Pennsylvania Commission on Crime and Delinquency. channeled through the Pennsylvania Commission on Crime and Delinquency.
Points of view or opinions contained within this document are those of the author and do not Points of view or opinions contained within this document are those of the author and do not
necessarily represent any official position, policy or view of the AOPC or PCAR, the Pennsylvania necessarily represent any official position, policy or view of the AOPC or PCAR, the Pennsylvania
judiciary or the U.S. Department of Justice. Part or all of this publication may be reproduced with judiciary or the U.S. Department of Justice. Part or all of this publication may be reproduced with
permission and if credited to the AOPC. Copies of this benchbook are available at no charge to permission and if credited to the AOPC. Copies of this benchbook are available at no charge to
Pennsylvania judges. Pennsylvania judges.
Pennsylvania Coalition Against Rape 2015 and Pennsylvania Coalition Against Rape 2015 and
Administrative Office of Pennsylvania Courts 2015. Administrative Office of Pennsylvania Courts 2015.
All rights reserved. All rights reserved.
Author Project Manager Author Project Manager
The Honorable Jack A. Panella Enid Melendez The Honorable Jack A. Panella Enid Melendez
Superior Court of Pennsylvania Training Projects Coordinator, PCAR Superior Court of Pennsylvania Training Projects Coordinator, PCAR
Preface Preface
This, the third edition of the Benchbook on Crimes of Sexual Violence in Pennsylvania, This, the third edition of the Benchbook on Crimes of Sexual Violence in Pennsylvania,
is published by the Administrative Office of Pennsylvania Courts. The benchbook is a is published by the Administrative Office of Pennsylvania Courts. The benchbook is a
valuable resource for trial judges and is a comprehensive guide providing best practices valuable resource for trial judges and is a comprehensive guide providing best practices
and information to help in understanding the intricacies and procedural requirements and information to help in understanding the intricacies and procedural requirements
in these highly sensitive sexual offense cases. The book was written by Judge Jack A. in these highly sensitive sexual offense cases. The book was written by Judge Jack A.
Panella from the Superior Court of Pennsylvania. It was funded by a grant from the Panella from the Superior Court of Pennsylvania. It was funded by a grant from the
Pennsylvania Commission on Crime and Delinquency. Pennsylvania Commission on Crime and Delinquency.
Section 1 of the benchbook, Understanding Sexual Violence, provides an in- Section 1 of the benchbook, Understanding Sexual Violence, provides an in-
depth discussion of the history and development of laws criminalizing sexually violent depth discussion of the history and development of laws criminalizing sexually violent
behavior and is intended to provide a comprehensive understanding of Pennsylvanias behavior and is intended to provide a comprehensive understanding of Pennsylvanias
current sexual offense laws. Special emphasis is given to the resultant physical and current sexual offense laws. Special emphasis is given to the resultant physical and
psychological effects of a sexual assault on a victim as well as to identifying victims psychological effects of a sexual assault on a victim as well as to identifying victims
rights and programs. A full listing of all crimes of sexual violence as well as a discussion of rights and programs. A full listing of all crimes of sexual violence as well as a discussion of
available defenses can be found in chapters 3, 4 and 5. This edition includes an expanded available defenses can be found in chapters 3, 4 and 5. This edition includes an expanded
discussion of defenses, based on evidentiary issues and constitutional provisions, in discussion of defenses, based on evidentiary issues and constitutional provisions, in
Chapter 5. Chapter 5.
Section 2, The Process of a Sex Offense Case, addresses the procedural and Section 2, The Process of a Sex Offense Case, addresses the procedural and
practical steps of a sex offense case, from pretrial issues to appellate review. The two practical steps of a sex offense case, from pretrial issues to appellate review. The two
appendices to Chapter 7 include useful tools for trial and sentencing preparation, Chapter appendices to Chapter 7 include useful tools for trial and sentencing preparation, Chapter
8 includes a discussion clarifying the often complex tier system set up in the new laws 8 includes a discussion clarifying the often complex tier system set up in the new laws
regarding registration and reporting of sex offenders. Chapter 8 includes discussions on regarding registration and reporting of sex offenders. Chapter 8 includes discussions on
the recent appellate court cases addressing expert testimony on eyewitness identification the recent appellate court cases addressing expert testimony on eyewitness identification
and the defense of false confession. and the defense of false confession.
The benchbook continues with Section 3, Registration of Sexual Offenders, The benchbook continues with Section 3, Registration of Sexual Offenders,
which reviews and compares collateral ramifications of a sexual offense conviction, which reviews and compares collateral ramifications of a sexual offense conviction,
including sex offender registration laws. The appendix to Chapter 11 is a summary of including sex offender registration laws. The appendix to Chapter 11 is a summary of
the information that the trial court must provide to a convicted sex offender under the the information that the trial court must provide to a convicted sex offender under the
Sex Offender Registration and Notification Act. Section 3 also examines the Combined Sex Offender Registration and Notification Act. Section 3 also examines the Combined
DNA Index System (CODIS), an electronic database that allows nationwide access to DNA Index System (CODIS), an electronic database that allows nationwide access to
DNA profiles and profiling) as well as DNA data retention and testing laws. DNA profiles and profiling) as well as DNA data retention and testing laws.
Lastly, Section 4, Resources, lists victim service providers in Pennsylvania and Lastly, Section 4, Resources, lists victim service providers in Pennsylvania and
programs designed to assist in sexual abuse prevention, detection and prosecution. programs designed to assist in sexual abuse prevention, detection and prosecution.
i i
Acknowledgements Acknowledgements
The extraordinary talents of many individuals contributed to the production of The extraordinary talents of many individuals contributed to the production of
the book. the book.
The book was produced with the encouragement and support of Chief Justice The book was produced with the encouragement and support of Chief Justice
Thomas G. Saylor and Former Chief Justice Ronald D. Castille. Of course, the book Thomas G. Saylor and Former Chief Justice Ronald D. Castille. Of course, the book
would not have been possible without the participation of Madame Justice Debra Todd, would not have been possible without the participation of Madame Justice Debra Todd,
and we thank Justice Todd for providing the foreword and her guidance in organizing and we thank Justice Todd for providing the foreword and her guidance in organizing
Pennsylvanias first sex offender court in Allegheny County. Pennsylvanias first sex offender court in Allegheny County.
We are also indebted to the staff at the Administrative Office of Pennsylvania We are also indebted to the staff at the Administrative Office of Pennsylvania
Courts. We particularly thank Thomas B. Darr, deputy court administrator, and Stephen Courts. We particularly thank Thomas B. Darr, deputy court administrator, and Stephen
M. Feiler, Ph.D., director of Judicial Education. M. Feiler, Ph.D., director of Judicial Education.
The following contributed research which went into the preparation of the The following contributed research which went into the preparation of the
book: William Clements, Esq.; Christopher Nace, Esq.; Benjamin Kohler, Esq.; Jeanne L. book: William Clements, Esq.; Christopher Nace, Esq.; Benjamin Kohler, Esq.; Jeanne L.
Rensberger, Esq. of Central Legal Staff, Superior Court of Pennsylvania; Mary Graybill, Rensberger, Esq. of Central Legal Staff, Superior Court of Pennsylvania; Mary Graybill,
Esq.; Diane Moyer, Esq., Legal Director of PCAR; and Brian J. Panella, from Widener Law Esq.; Diane Moyer, Esq., Legal Director of PCAR; and Brian J. Panella, from Widener Law
School. School.
Special recognition must be given to numerous individuals and agencies: the Special recognition must be given to numerous individuals and agencies: the
Defender Association of Philadelphia, especially Abigail Horn, Esq. and Aaron J. Marcus, Defender Association of Philadelphia, especially Abigail Horn, Esq. and Aaron J. Marcus,
Esq.; the Pennsylvania District Attorneys Association, especially the Honorable David Esq.; the Pennsylvania District Attorneys Association, especially the Honorable David
J. Freed, district attorney of Cumberland County; Elliot C. Howsei, Esq., chief public J. Freed, district attorney of Cumberland County; Elliot C. Howsei, Esq., chief public
defender, Allegheny County; the Philadelphia Bar Association, Criminal Justice Section, defender, Allegheny County; the Philadelphia Bar Association, Criminal Justice Section,
especially Isla A. Fruchter, Esq. and Robert Muench, Esq.; the Pennsylvania State Police, especially Isla A. Fruchter, Esq. and Robert Muench, Esq.; the Pennsylvania State Police,
especially Captain Scott C. Price; the Pennsylvania Bar Association, Criminal Justice especially Captain Scott C. Price; the Pennsylvania Bar Association, Criminal Justice
Section, especially Joseph A. Curcillo, Esq.; the Family Violence & Sexual Assault Unit Section, especially Joseph A. Curcillo, Esq.; the Family Violence & Sexual Assault Unit
of the Philadelphia District Attorneys Office, especially the Chief of the Unit, James of the Philadelphia District Attorneys Office, especially the Chief of the Unit, James
Carpenter, Esq.; the Honorable Stephanie J. Salavantis, district attorney of Luzerne Carpenter, Esq.; the Honorable Stephanie J. Salavantis, district attorney of Luzerne
County; and Jules Epstein, professor of law, Widener University School of Law. County; and Jules Epstein, professor of law, Widener University School of Law.
We are also grateful to Widener University School of Law. Under the guidance We are also grateful to Widener University School of Law. Under the guidance
of Francis Catania Jr., Esq., associate professor of law and director of Clinical Legal of Francis Catania Jr., Esq., associate professor of law and director of Clinical Legal
Education, and Assistant Dean LeaNora Ruffin, the following students worked tirelessly Education, and Assistant Dean LeaNora Ruffin, the following students worked tirelessly
on the Table of Authorities and Table of Cases: on the Table of Authorities and Table of Cases:
Maureen Connor Alexxys Ehresman Catelyn McDounough Maureen Connor Alexxys Ehresman Catelyn McDounough
Courtney McGinn Margot Cullen David Strenfel Courtney McGinn Margot Cullen David Strenfel
Stephanie Stecklair Stephanie Stecklair
ii ii
During the final stages of the book, Doreen Lipare and Nancy Casciole from Judge During the final stages of the book, Doreen Lipare and Nancy Casciole from Judge
Panellas office, and Gina Earle from AOPC, really saved the day. At the formatting and Panellas office, and Gina Earle from AOPC, really saved the day. At the formatting and
printing stages, the patience and professional work of Fortney Printing, especially Karen printing stages, the patience and professional work of Fortney Printing, especially Karen
Fortney, was much appreciated. Fortney, was much appreciated.
From the first edition of the book, we wish to thank the many individuals who From the first edition of the book, we wish to thank the many individuals who
were listed in that edition. Foremost among them are Teresa Scalzo, Esq. and Lynn were listed in that edition. Foremost among them are Teresa Scalzo, Esq. and Lynn
Carson, the former judicial project specialist for PCAR. Carson, the former judicial project specialist for PCAR.
Finally, our sincere gratitude is extended to Delilah Rumburg, CEO of PCAR, Finally, our sincere gratitude is extended to Delilah Rumburg, CEO of PCAR,
whose commitment to the prevention of sexual violence made this benchbook possible. whose commitment to the prevention of sexual violence made this benchbook possible.
______________________________________________________________________________ ______________________________________________________________________________
Benchbook Advisory Committee Benchbook Advisory Committee
Honorable Debra Todd Honorable Correale F. Stevens Honorable Debra Todd Honorable Correale F. Stevens
Supreme Court of Pennsylvania Supreme Court of Pennsylvania Supreme Court of Pennsylvania Supreme Court of Pennsylvania
Honorable Susan P. Gantman, P.J. Honorable Jacqueline O. Shogan Honorable Susan P. Gantman, P.J. Honorable Jacqueline O. Shogan
Superior Court of Pennsylvania Superior Court of Pennsylvania Superior Court of Pennsylvania Superior Court of Pennsylvania
Honorable Sallie Updyke Mundy Honorable David Wecht Honorable Sallie Updyke Mundy Honorable David Wecht
Superior Court of Pennsylvania Superior Court of Pennsylvania Superior Court of Pennsylvania Superior Court of Pennsylvania
Honorable William Platt, S.J. Honorable Shelley Robins New Honorable William Platt, S.J. Honorable Shelley Robins New
Superior Court of Pennsylvania Court of Common Pleas of Philadelphia Superior Court of Pennsylvania Court of Common Pleas of Philadelphia
Honorable Robert L. Steinberg Honorable Timothy F. McCune Honorable Robert L. Steinberg Honorable Timothy F. McCune
Court of Common Pleas of Lehigh County Court of Common Pleas of Butler County Court of Common Pleas of Lehigh County Court of Common Pleas of Butler County
Honorable Donna Jo McDaniel Honorable Deborah Essis Curcillo Honorable Donna Jo McDaniel Honorable Deborah Essis Curcillo
Court of Common Pleas of Allegheny County Court of Common Pleas of Dauphin County Court of Common Pleas of Allegheny County Court of Common Pleas of Dauphin County
Honorable Daniel J. Anders David A. Szewczak, Esq. Honorable Daniel J. Anders David A. Szewczak, Esq.
Court of Common Pleas of Philadelphia Executive Administrator, Superior Court Court of Common Pleas of Philadelphia Executive Administrator, Superior Court
iii iii
From the Desk of Delilah Rumburg From the Desk of Delilah Rumburg
Chief Executive Officer, Pennsylvania Coalition Against Rape Chief Executive Officer, Pennsylvania Coalition Against Rape
In keeping with our mission to advocate for the rights and needs of victims of In keeping with our mission to advocate for the rights and needs of victims of
sexual violence, and on behalf of our network of rape crisis programs, I am honored sexual violence, and on behalf of our network of rape crisis programs, I am honored
to present you with the Third Edition of the Benchbook on Crimes of Sexual Violence to present you with the Third Edition of the Benchbook on Crimes of Sexual Violence
in Pennsylvania. This resource is intended to provide all those involved in the judicial in Pennsylvania. This resource is intended to provide all those involved in the judicial
system the best and most up-to-date text and explanation of legislation to fully address system the best and most up-to-date text and explanation of legislation to fully address
the difficult issues of sexual violence in the Commonwealth. the difficult issues of sexual violence in the Commonwealth.
This third edition is possible because of the will and commitment of the team of This third edition is possible because of the will and commitment of the team of
stakeholders that endeavor to provide justice to victims of sexual violence and to keep stakeholders that endeavor to provide justice to victims of sexual violence and to keep
our community safe. We extend our heartfelt thanks to the judges, prosecutors, defense our community safe. We extend our heartfelt thanks to the judges, prosecutors, defense
attorneys, researchers and practitioners who generously gave their time and expertise attorneys, researchers and practitioners who generously gave their time and expertise
to provide a quality product for the use of the judiciary in the Commonwealth. This book to provide a quality product for the use of the judiciary in the Commonwealth. This book
is a physical manifestation of the daily collaborative efforts of a host of dedicated public is a physical manifestation of the daily collaborative efforts of a host of dedicated public
servants. servants.
The benchbook is but one example of our legacy of partnerships with dedicated The benchbook is but one example of our legacy of partnerships with dedicated
professionals to hold offenders accountable for their actions and to provide a justice professionals to hold offenders accountable for their actions and to provide a justice
system that recognizes the impact these serious crimes have on the victim. We have also system that recognizes the impact these serious crimes have on the victim. We have also
produced a resource specifically for magisterial district judges. produced a resource specifically for magisterial district judges.
We have made great legislative strides addressing the evolving issues of sexual We have made great legislative strides addressing the evolving issues of sexual
violence. But without the dissemination of information to busy practitioners, it would violence. But without the dissemination of information to busy practitioners, it would
be impossible to actualize these changes in public policy and in the lives of those who be impossible to actualize these changes in public policy and in the lives of those who
are impacted by these crimes. are impacted by these crimes.
iv iv
Foreword Foreword
by by
Madame Justice Debra Todd Madame Justice Debra Todd
Supreme Court of Pennsylvania Supreme Court of Pennsylvania
On behalf of my fellow Justices on the Supreme Court of Pennsylvania and myself, On behalf of my fellow Justices on the Supreme Court of Pennsylvania and myself,
I thank Judge Jack Panella for his tireless effort in undertaking the ambitious project of I thank Judge Jack Panella for his tireless effort in undertaking the ambitious project of
authoring this Third Edition of the Pennsylvania Benchbook on Crimes of Sexual Violence. authoring this Third Edition of the Pennsylvania Benchbook on Crimes of Sexual Violence.
I also commend the Administrative Office of Pennsylvania Courts and the Pennsylvania I also commend the Administrative Office of Pennsylvania Courts and the Pennsylvania
Coalition Against Rape for their sponsorship and valuable contributions to this project. Coalition Against Rape for their sponsorship and valuable contributions to this project.
Crimes of sexual violence are challenging to prosecute, to defend and to Crimes of sexual violence are challenging to prosecute, to defend and to
adjudicate, regardless of the circumstances or the age or gender of the victim. Sexual adjudicate, regardless of the circumstances or the age or gender of the victim. Sexual
violence can affect anyone, but nine out of ten victims are female. Recent statistics have violence can affect anyone, but nine out of ten victims are female. Recent statistics have
demonstrated that one in five young women will be sexually assaulted during college, demonstrated that one in five young women will be sexually assaulted during college,
and that one in five American women will be sexually assaulted during their lifetime. and that one in five American women will be sexually assaulted during their lifetime.
Having served for fifteen years as an appellate judge, I can state with certainty Having served for fifteen years as an appellate judge, I can state with certainty
that no cases have affected me more than those involving the sexual abuse of children. I that no cases have affected me more than those involving the sexual abuse of children. I
have been astounded by the sheer number of these cases involving the most appalling of have been astounded by the sheer number of these cases involving the most appalling of
crimes - perpetrated upon the most innocent and vulnerable members of our society. crimes - perpetrated upon the most innocent and vulnerable members of our society.
It has been estimated that 67 percent of all sexual assault victims are under It has been estimated that 67 percent of all sexual assault victims are under
eighteen; one-third are under twelve; and one in seven cases involves children under eighteen; one-third are under twelve; and one in seven cases involves children under
six. Studies have projected that an astounding one in four girls and one in six boys will six. Studies have projected that an astounding one in four girls and one in six boys will
be sexually abused at some point during their childhood. be sexually abused at some point during their childhood.
The impact of sexual abuse on a child is profound and long lasting, and it is often The impact of sexual abuse on a child is profound and long lasting, and it is often
made worse by the conspiracy of silence among adults who look the other way or refuse made worse by the conspiracy of silence among adults who look the other way or refuse
to believe or protect the child. Sadly, most sexually abused children - over 80 percent - to believe or protect the child. Sadly, most sexually abused children - over 80 percent -
never come to our attention. Fear, secrecy, and intense feelings of shame may prevent never come to our attention. Fear, secrecy, and intense feelings of shame may prevent
children, as well as adults aware of the abuse, from seeking help. Furthermore, assaults children, as well as adults aware of the abuse, from seeking help. Furthermore, assaults
often go undetected because most occur in the privacy of the home and in the absence of often go undetected because most occur in the privacy of the home and in the absence of
witnesses. witnesses.
In Pennsylvania, we strive to protect our children and prosecute and punish In Pennsylvania, we strive to protect our children and prosecute and punish
those who harm them. Our legislature has enacted laws imposing harsher penalties for those who harm them. Our legislature has enacted laws imposing harsher penalties for
sexual crimes against children, and it is incumbent upon the courts to issue sentences sexual crimes against children, and it is incumbent upon the courts to issue sentences
that reflect the seriousness of these offenses. that reflect the seriousness of these offenses.
At the same time, we as judges take a solemn oath to uphold the Constitutions of At the same time, we as judges take a solemn oath to uphold the Constitutions of
the United States and the Commonwealth of Pennsylvania, so as to ensure that each and the United States and the Commonwealth of Pennsylvania, so as to ensure that each and
every individual charged with a crime receives due process of law together with all of every individual charged with a crime receives due process of law together with all of
the rights inherent in those charters. the rights inherent in those charters.
v v
Judge Panellas benchbook will go a long way toward ensuring that all Pennsylvania Judge Panellas benchbook will go a long way toward ensuring that all Pennsylvania
jurists have at their disposal an explication of not only the dynamics of crimes of sexual jurists have at their disposal an explication of not only the dynamics of crimes of sexual
violence, but also the relevant evidentiary, procedural, substantive and sentencing violence, but also the relevant evidentiary, procedural, substantive and sentencing
considerations. For this, we owe Judge Panella a debt of gratitude. considerations. For this, we owe Judge Panella a debt of gratitude.
Judicial education is a crucial element in ensuring justice for all. I urge every trial Judicial education is a crucial element in ensuring justice for all. I urge every trial
judge in Pennsylvania to take full advantage of Judge Panellas benchbook in order to judge in Pennsylvania to take full advantage of Judge Panellas benchbook in order to
fully understand and thoughtfully consider the nuances of this difficult area of the law. fully understand and thoughtfully consider the nuances of this difficult area of the law.
vi vi
Table of Contents Table of Contents
* References are to chapter and page number. * References are to chapter and page number.
A detailed table of contents precedes every chapter. A detailed table of contents precedes every chapter.
SECTION ONE: Understanding Sexual Violence SECTION ONE: Understanding Sexual Violence
Chapter 1: The Dynamics of Sexual Violence Crimes .............................................................. 1:1 Chapter 1: The Dynamics of Sexual Violence Crimes .............................................................. 1:1
Chapter 2: General Provisions of Sexual Violence Crimes ................................................... 2:1 Chapter 2: General Provisions of Sexual Violence Crimes ................................................... 2:1
Chapter 3: Crimes of Sexual Violence in Pennsylvania .......................................................... 3:1 Chapter 3: Crimes of Sexual Violence in Pennsylvania .......................................................... 3:1
Chapter 4: Offenses Against Children ........................................................................................... 4:1 Chapter 4: Offenses Against Children ........................................................................................... 4:1
Chapter 5: Defenses .............................................................................................................................. 5:1 Chapter 5: Defenses .............................................................................................................................. 5:1
SECTION TWO: The Process of a Sex Offense Case SECTION TWO: The Process of a Sex Offense Case
Chapter 6: Pretrial ................................................................................................................................. 6:1 Chapter 6: Pretrial ................................................................................................................................. 6:1
Chapter 7: Trial Issues ......................................................................................................................... 7:1 Chapter 7: Trial Issues ......................................................................................................................... 7:1
Chapter 8: Scientific Evidence .......................................................................................................... 8:1 Chapter 8: Scientific Evidence .......................................................................................................... 8:1
Chapter 9: Post-Trial Procedures and Sentencing ................................................................... 9:1 Chapter 9: Post-Trial Procedures and Sentencing ................................................................... 9:1
Chapter 10: Appellate Review and Post-Conviction Relief .................................................. 10:1 Chapter 10: Appellate Review and Post-Conviction Relief .................................................. 10:1
SECTION THREE: Registration of Sexual Offenders SECTION THREE: Registration of Sexual Offenders
Chapter 11: Sex Offender Registration and Notification ..................................................... 11:1 Chapter 11: Sex Offender Registration and Notification ..................................................... 11:1
SECTION FOUR: Resources SECTION FOUR: Resources

Chapter 12 ............................................................................................................................................... 12:1 Chapter 12 ............................................................................................................................................... 12:1
A full listing of victim service providers in Pennsylvania and programs designed to assist in A full listing of victim service providers in Pennsylvania and programs designed to assist in
sexual abuse prevention, detection and prosecution. sexual abuse prevention, detection and prosecution.
Table of Cases ............................................................................................................................................. R-1 Table of Cases ............................................................................................................................................. R-1

Table of Authorities ............................................................................................................................... R-47 Table of Authorities ............................................................................................................................... R-47
Subject Index ........................................................................................................................................... R-67 Subject Index ........................................................................................................................................... R-67
vii vii
Chapter 1 Chapter 1
THE DYNAMICS OF THE DYNAMICS OF

SEXUALLY VIOLENT SEXUALLY VIOLENT
CRIMES CRIMES
The Dynamics of Sexual Violence Crimes The Dynamics of Sexual Violence Crimes
Chapter One Table of Contents Chapter One Table of Contents

The Dynamics of Sexual Violent Crimes The Dynamics of Sexual Violent Crimes
1.1 PURPOSE OF THE BENCHBOOK ........................................................................................... 2 1.1 PURPOSE OF THE BENCHBOOK ........................................................................................... 2
A. Summary of the Benchbook ................................................................................................ 2 A. Summary of the Benchbook ................................................................................................ 2
B. Crimes of Sexual Violence and Pennsylvania Law ...................................................... 3 B. Crimes of Sexual Violence and Pennsylvania Law ...................................................... 3
1.2 CHAPTER OVERVIEW ................................................................................................................. 5 1.2 CHAPTER OVERVIEW ................................................................................................................. 5
1.3 DEFINING RAPE AND SEXUAL ASSAULT............................................................................ 5 1.3 DEFINING RAPE AND SEXUAL ASSAULT............................................................................ 5
A. Major Sexual Assault Crimes in Pennsylvania ............................................................... 6 A. Major Sexual Assault Crimes in Pennsylvania ............................................................... 6
B. Defining Sexual Violence ........................................................................................................ 9 B. Defining Sexual Violence ........................................................................................................ 9
C. Comparing Myths of Sexual Violence to the Reality ................................................... 9 C. Comparing Myths of Sexual Violence to the Reality ................................................... 9
1. Non-stranger or Acquaintance Rape ..................................................... 10 1. Non-stranger or Acquaintance Rape ..................................................... 10
2. Use of Weapons ............................................................................................... 11 2. Use of Weapons ............................................................................................... 11
3. Victim Injury ..................................................................................................... 11 3. Victim Injury ..................................................................................................... 11
4. Reporting of Rape and Sexual Assault ................................................... 12 4. Reporting of Rape and Sexual Assault ................................................... 12
5. False Reporting ............................................................................................... 14 5. False Reporting ............................................................................................... 14
6. Victim Statistics ............................................................................................... 15 6. Victim Statistics ............................................................................................... 15
7. Perpetrator Statistics .................................................................................... 15 7. Perpetrator Statistics .................................................................................... 15
8. Delay in Reporting ......................................................................................... 16 8. Delay in Reporting ......................................................................................... 16
1.4 THE IMPACT OF RAPE AND SEXUAL ASSAULT ON THE VICTIM ....................... 17 1.4 THE IMPACT OF RAPE AND SEXUAL ASSAULT ON THE VICTIM ....................... 17
A. Physical Injury from Rape and Sexual Assault ........................................................... 17 A. Physical Injury from Rape and Sexual Assault ........................................................... 17
1. Gross Bodily Injury in Female Adults and Adolescents ................. 17 1. Gross Bodily Injury in Female Adults and Adolescents ................. 17
2. Genital Injury in Female Adults and Adolescents ............................. 18 2. Genital Injury in Female Adults and Adolescents ............................. 18
B. Psychological Effects from Sexual Assault on Victims ............................................ 20 B. Psychological Effects from Sexual Assault on Victims ............................................ 20
1. Common Psychological Reactions to Sexual Violence .................... 20 1. Common Psychological Reactions to Sexual Violence .................... 20
2. Rape Trauma Syndrome .............................................................................. 21 2. Rape Trauma Syndrome .............................................................................. 21
3. Acute Stress Disorder ................................................................................... 23 3. Acute Stress Disorder ................................................................................... 23
4. Post Traumatic Stress Disorder ............................................................... 24 4. Post Traumatic Stress Disorder ............................................................... 24
C. Recognizing the Traumatic Effects of Court Proceedings ...................................... 26 C. Recognizing the Traumatic Effects of Court Proceedings ...................................... 26
1. Victim-Blaming and its Impact on Offender Accountability ........ 27 1. Victim-Blaming and its Impact on Offender Accountability ........ 27
1.5 VICTIMS RIGHTS ...................................................................................................................... 27 1.5 VICTIMS RIGHTS ...................................................................................................................... 27
1.6 BARRIERS TO DUE PROCESS IN COURT PROCEEDINGS ....................................... 30 1.6 BARRIERS TO DUE PROCESS IN COURT PROCEEDINGS ....................................... 30
1.7 THE ROLE OF THE VICTIM ADVOCATE IN SEXUAL ASSAULT CASES .............. 30 1.7 THE ROLE OF THE VICTIM ADVOCATE IN SEXUAL ASSAULT CASES .............. 30
Chapter 1 1 Chapter 1 1
Chapter One Chapter One

The Dynamics of Sexual Violent Crimes The Dynamics of Sexual Violent Crimes
1.1 PURPOSE OF THE BENCHBOOK 1.1 PURPOSE OF THE BENCHBOOK
A. Summary of the Pennsylvania Benchbook on Crimes of Sexual Violence A. Summary of the Pennsylvania Benchbook on Crimes of Sexual Violence
This book is designed to assist judges in the handling of sexual violence cases. Its This book is designed to assist judges in the handling of sexual violence cases. Its
purpose is to address the intricacies of the numerous and often confusing procedural purpose is to address the intricacies of the numerous and often confusing procedural
and substantive requirements of these types of cases. Included is a full listing of all and substantive requirements of these types of cases. Included is a full listing of all
crimes of sexual violence, with the grading, penalty and registration requirements for crimes of sexual violence, with the grading, penalty and registration requirements for
each crime. each crime.
Additionally, the book provides information about sexual violence1 from experts Additionally, the book provides information about sexual violence1 from experts
in the field, examines best practices for these cases, and offers resources for judges in the field, examines best practices for these cases, and offers resources for judges
seeking additional information or guidance. The book, specifically designed for trial seeking additional information or guidance. The book, specifically designed for trial
judges, has been divided into four sections: judges, has been divided into four sections:
SECTION ONE: Understanding Sexual Violence SECTION ONE: Understanding Sexual Violence
SECTION TWO: The Process of a Sex Offense Case SECTION TWO: The Process of a Sex Offense Case
SECTION THREE: Registration of Sexual Offenders SECTION THREE: Registration of Sexual Offenders
SECTION FOUR: Resources SECTION FOUR: Resources
Section One examines the dynamics of sexual assault crimes. The elements of Section One examines the dynamics of sexual assault crimes. The elements of
crimes of sexual violence are provided, as well as definitions associated with current crimes of sexual violence are provided, as well as definitions associated with current
sexual offenses.2 Section One also provides an overview of common defenses to sexual sexual offenses.2 Section One also provides an overview of common defenses to sexual
assault. assault.
Chapter 1: The Dynamics of Sexual Violence Crimes Chapter 1: The Dynamics of Sexual Violence Crimes
Chapter 2: General Provisions of Sexual Violence Crimes Chapter 2: General Provisions of Sexual Violence Crimes
Chapter 3: Crimes of Sexual Violence in Pennsylvania Chapter 3: Crimes of Sexual Violence in Pennsylvania
Chapter 4: Offenses Against Children Chapter 4: Offenses Against Children
Chapter 5: Defenses Chapter 5: Defenses
1 Former President Jimmy Carter, in his new book, A Call To Action: Women, Religion, Violence, and Power, calls abuse of women, both 1 Former President Jimmy Carter, in his new book, A Call To Action: Women, Religion, Violence, and Power, calls abuse of women, both
sexual and physical, as the worst and most pervasive and unaddressed human rights violation on Earth. sexual and physical, as the worst and most pervasive and unaddressed human rights violation on Earth.
2 18 Pa.Cons.stat.ann. 3101 - 3144. 2 18 Pa.Cons.stat.ann. 3101 - 3144.
2 Chapter 1 2 Chapter 1
Section Two addresses the practical aspects of a case of sexual violence, Section Two addresses the practical aspects of a case of sexual violence,
including pre-trial issues such as bail and evidentiary issues presented at trial. Pertinent including pre-trial issues such as bail and evidentiary issues presented at trial. Pertinent
information regarding the grading and penalties of crimes is provided, as well as information regarding the grading and penalties of crimes is provided, as well as
registration requirements. registration requirements.
Chapter 6: Pretrial Chapter 6: Pretrial

Chapter 7: Trial Issues Chapter 7: Trial Issues
Chapter 8: Scientific Evidence Chapter 8: Scientific Evidence
Chapter 9: Post-Trial Procedures and Sentencing Chapter 9: Post-Trial Procedures and Sentencing
Chapter 10: Appellate Review and Post-Conviction Relief Chapter 10: Appellate Review and Post-Conviction Relief
Section Three examines the ramifications of a sexual offense conviction, Section Three examines the ramifications of a sexual offense conviction,
including sex offender registration laws and sex offender reporting requirements. On including sex offender registration laws and sex offender reporting requirements. On
December 20, 2011, Pennsylvania enacted legislation that substantially changed the December 20, 2011, Pennsylvania enacted legislation that substantially changed the
prior law regarding registration requirements for persons convicted of sexual offenses, prior law regarding registration requirements for persons convicted of sexual offenses,
previously known as Megans Law III. The new legislation, 2011, Dec. 20, P.L. 446, No. previously known as Megans Law III. The new legislation, 2011, Dec. 20, P.L. 446, No.
111, 12 (effective December 20, 2012), amended by 2012, July 5, P.L. 880, No. 91, 3 111, 12 (effective December 20, 2012), amended by 2012, July 5, P.L. 880, No. 91, 3
(effective December 20, 2012), is codified at 42 Pa.Cons.Stat.Ann. 9799.109799.41, (effective December 20, 2012), is codified at 42 Pa.Cons.Stat.Ann. 9799.109799.41,
and is known as the Sex Offender Registration and Notification Act or SORNA. and is known as the Sex Offender Registration and Notification Act or SORNA.
Chapter 11: Sex Offender Registration and Notification Chapter 11: Sex Offender Registration and Notification
Section Four includes published references and resources on sexual assault, as Section Four includes published references and resources on sexual assault, as
well as a list of Pennsylvanias rape crisis centers and child advocacy centers. well as a list of Pennsylvanias rape crisis centers and child advocacy centers.
B. Crimes of Sexual Violence and Pennsylvania Law B. Crimes of Sexual Violence and Pennsylvania Law
The Pennsylvania Supreme Court has stated: The Pennsylvania Supreme Court has stated:
The state clearly has a proper role to perform in protecting the The state clearly has a proper role to perform in protecting the
public from inadvertent offensive displays of sexual behavior, in public from inadvertent offensive displays of sexual behavior, in
preventing people from being forced against their will to submit preventing people from being forced against their will to submit
to sexual contact, in protecting minors from being sexually used to sexual contact, in protecting minors from being sexually used
by adults, and in eliminating cruelty to animals. To assure these by adults, and in eliminating cruelty to animals. To assure these
protections, a broad range of criminal statutes constitute valid police protections, a broad range of criminal statutes constitute valid police
power exercises, including proscriptions of indecent exposure, power exercises, including proscriptions of indecent exposure,
open lewdness, rape, involuntary deviate sexual intercourse, open lewdness, rape, involuntary deviate sexual intercourse,
indecent assault, statutory rape, corruption of minors . . . . indecent assault, statutory rape, corruption of minors . . . .
Commonwealth v. Bonadio, 490 Pa. 91, 95, 415 A.2d 47, 49 (1980) (Flaherty, J., plurality). Commonwealth v. Bonadio, 490 Pa. 91, 95, 415 A.2d 47, 49 (1980) (Flaherty, J., plurality).
In Pennsylvania, crimes of sexual violence are mostly included in the section of In Pennsylvania, crimes of sexual violence are mostly included in the section of
the Crimes Code designated for sexual offenses, 18 Pa.Cons.Stat.Ann. 3101 - 3144. the Crimes Code designated for sexual offenses, 18 Pa.Cons.Stat.Ann. 3101 - 3144.
Many of the provisions of Subchapters A, B and C of Chapter 31, Sexual Offenses, are Many of the provisions of Subchapters A, B and C of Chapter 31, Sexual Offenses, are
based upon Article 213 of the Model Penal Code. based upon Article 213 of the Model Penal Code.
The Pennsylvania Crimes Code specifies three high level charges aimed at The Pennsylvania Crimes Code specifies three high level charges aimed at
nonconsensual sexual assaults: Rape, 18 Pa.Cons.Stat.Ann. 3121, Involuntary Deviate nonconsensual sexual assaults: Rape, 18 Pa.Cons.Stat.Ann. 3121, Involuntary Deviate
Sexual Intercourse, 18 Pa.Cons.Stat.Ann. 3123, and Sexual Assault, 18 Pa.Cons.Stat. Sexual Intercourse, 18 Pa.Cons.Stat.Ann. 3123, and Sexual Assault, 18 Pa.Cons.Stat.
Ann. 3124.1. Rape and IDSI are felonies of the first degree, while Sexual Assault is a Ann. 3124.1. Rape and IDSI are felonies of the first degree, while Sexual Assault is a
felony of the second degree. Statutory rape is designated in Pennsylvania as Statutory felony of the second degree. Statutory rape is designated in Pennsylvania as Statutory
Sexual Assault under 8 Pa.Cons.Stat.Ann. 3122.1. Sexual Assault under 8 Pa.Cons.Stat.Ann. 3122.1.
Additionally, the Pennsylvania Crimes Code prohibits a broad range of other Additionally, the Pennsylvania Crimes Code prohibits a broad range of other
types of sexual misconduct. As further explained below, the Code is gender- neutral. types of sexual misconduct. As further explained below, the Code is gender- neutral.
Furthermore, Pennsylvania law specifies offenses of sexual violence directed Furthermore, Pennsylvania law specifies offenses of sexual violence directed
at children, and other general offenses against children, which are often associated at children, and other general offenses against children, which are often associated
with sexual offenses, in other sections of the Crimes Code. These crimes are found in with sexual offenses, in other sections of the Crimes Code. These crimes are found in
numerous different chapters, including Chapter 29, Kidnapping (e.g., Luring a Child into numerous different chapters, including Chapter 29, Kidnapping (e.g., Luring a Child into
a Motor Vehicle, 18 Pa.Cons.Stat.Ann. 2910); Chapter 43, Offenses Against the Family a Motor Vehicle, 18 Pa.Cons.Stat.Ann. 2910); Chapter 43, Offenses Against the Family
(e.g., Endangering the Welfare of Children, 18 Pa.Cons.Stat.Ann. 4303); and Chapter (e.g., Endangering the Welfare of Children, 18 Pa.Cons.Stat.Ann. 4303); and Chapter
63, Minors (e.g., Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312). 63, Minors (e.g., Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312).
Many aspects of Pennsylvania law parallel current standards for crimes of sexual Many aspects of Pennsylvania law parallel current standards for crimes of sexual
violence, such as: violence, such as:
No Corroboration Required No Corroboration Required

In Pennsylvania, the uncorroborated testimony of the complaining witness is In Pennsylvania, the uncorroborated testimony of the complaining witness is
sufficient evidence of a sexual offense. See Chapter 7, Section 7.4, TESTIMONY sufficient evidence of a sexual offense. See Chapter 7, Section 7.4, TESTIMONY
OF COMPLAINANT. OF COMPLAINANT.
The Prompt Complaint Rule The Prompt Complaint Rule

Evidence of a sexual assault victims prompt complaint is admissible in the Evidence of a sexual assault victims prompt complaint is admissible in the
prosecutions case-in-chief. However, the lack of promptness of a report may be a prosecutions case-in-chief. However, the lack of promptness of a report may be a
factor to be raised in cross-examination if admissible under the rules of evidence. factor to be raised in cross-examination if admissible under the rules of evidence.
See Chapter 7, Section 7.7, EVIDENCE OF PROMPT COMPLAINT. See Chapter 7, Section 7.7, EVIDENCE OF PROMPT COMPLAINT.
Abolition of the Marital Immunity Rule Abolition of the Marital Immunity Rule
The marital immunity rule which specified that a husband could not legally The marital immunity rule which specified that a husband could not legally
rape his wife was abrogated in Pennsylvania, and current Pennsylvania law rape his wife was abrogated in Pennsylvania, and current Pennsylvania law
grants no privilege to a husband when charged with any type of bodily injury or grants no privilege to a husband when charged with any type of bodily injury or
violence upon his wife. See Chapter 7, Section 7.18, SPOUSAL PRIVILEGE. violence upon his wife. See Chapter 7, Section 7.18, SPOUSAL PRIVILEGE.
The Rape Shield Law The Rape Shield Law

No longer is proof of a complainants prior sexual promiscuity admissible unless No longer is proof of a complainants prior sexual promiscuity admissible unless
it falls under specified exceptions such as evidence of motive, prejudice or bias or it falls under specified exceptions such as evidence of motive, prejudice or bias or
as evidence that negates the sexual contact. See Chapter 6, Section 6.8, EVIDENCE as evidence that negates the sexual contact. See Chapter 6, Section 6.8, EVIDENCE
OF VICTIMS PAST SEXUAL CONDUCT. OF VICTIMS PAST SEXUAL CONDUCT.
1.2 CHAPTER OVERVIEW 1.2 CHAPTER OVERVIEW

Chapter One addresses the issues resulting from sexual violence from both a legal Chapter One addresses the issues resulting from sexual violence from both a legal
and mental health perspective. and mental health perspective.
Section 1.3 examines, in a general way, crimes of sexual violence as listed in Section 1.3 examines, in a general way, crimes of sexual violence as listed in
Pennsylvania statutes, as well as the elements of rape and other major sexual assault Pennsylvania statutes, as well as the elements of rape and other major sexual assault
crimes. Section 1.4 provides evidence-based research about the impact of rape and crimes. Section 1.4 provides evidence-based research about the impact of rape and
sexual assault on victims. Section 1.5 enumerates victims rights afforded by the sexual assault on victims. Section 1.5 enumerates victims rights afforded by the
Pennsylvania Crime Victims Bill of Rights.3 Section 1.6 discusses common problems Pennsylvania Crime Victims Bill of Rights.3 Section 1.6 discusses common problems
facing victims of sexual assaults as they progress through the legal and judicial systems. facing victims of sexual assaults as they progress through the legal and judicial systems.
Section 1.7 provides an overview of the role and responsibilities of victim advocates in Section 1.7 provides an overview of the role and responsibilities of victim advocates in
sexual assault cases. sexual assault cases.
1.3 DEFINING RAPE AND SEXUAL ASSAULT 1.3 DEFINING RAPE AND SEXUAL ASSAULT
Rape and Sexual Assault are commonly used terms that may be defined differently Rape and Sexual Assault are commonly used terms that may be defined differently
depending on context, culture, or personal experience. Generally, rape is the term that depending on context, culture, or personal experience. Generally, rape is the term that
implies the use of force in unwanted sexual contact while sexual assault implies sexual implies the use of force in unwanted sexual contact while sexual assault implies sexual
contact without consent. contact without consent.
Legally, it is well established that sexual relations become a crime under a number Legally, it is well established that sexual relations become a crime under a number
of circumstances that may or may not involve the use or threat of force: of circumstances that may or may not involve the use or threat of force:
whenever there is a lack of consent,4 whenever there is a lack of consent,4

whenever the relations are initiated by force or threat of force,5 whenever the relations are initiated by force or threat of force,5
if there is a minor involved who is incapable of giving legal consent because of if there is a minor involved who is incapable of giving legal consent because of
age,6 age,6
if there is an adult involved who is incapable of giving legal consent because of if there is an adult involved who is incapable of giving legal consent because of
mental deficiency,7 mental deficiency,7
3 The Pennsylvania Crime Victims Act is codified at 18 Pa.stat. 11.201 11.216. 3 The Pennsylvania Crime Victims Act is codified at 18 Pa.stat. 11.201 11.216.
4 18 Pa.Cons.stat.ann. 3124.1. To support a charge of Sexual Assault, the prosecution must prove that the defendant engaged in 4 18 Pa.Cons.stat.ann. 3124.1. To support a charge of Sexual Assault, the prosecution must prove that the defendant engaged in
sexual intercourse or deviate sexual intercourse with a complainant without the complainants consent. Resistance to sexual assault sexual intercourse or deviate sexual intercourse with a complainant without the complainants consent. Resistance to sexual assault
is not required to sustain a conviction. Commonwealth v. Smith, 863 A.2d 1172, 1176 (Pa. Super. 2004). See also, Commonwealth v. is not required to sustain a conviction. Commonwealth v. Smith, 863 A.2d 1172, 1176 (Pa. Super. 2004). See also, Commonwealth v.
Pasley, 743 A.2d 521 (Pa. Super. 1999), appeal denied, 563 Pa. 674, 759 A.2d 922 (2000)(noting the crime of sexual assault is intended Pasley, 743 A.2d 521 (Pa. Super. 1999), appeal denied, 563 Pa. 674, 759 A.2d 922 (2000)(noting the crime of sexual assault is intended
to fill the loophole left by the rape and involuntary deviate sexual intercourse statutes by criminalizing non-consensual sex where the to fill the loophole left by the rape and involuntary deviate sexual intercourse statutes by criminalizing non-consensual sex where the
perpetrator employs little if no force). perpetrator employs little if no force).
5 18 Pa.Cons.stat.ann. 3121 (a)(1) & (2): A person commits a felony of the first degree when the person engages in sexual intercourse 5 18 Pa.Cons.stat.ann. 3121 (a)(1) & (2): A person commits a felony of the first degree when the person engages in sexual intercourse
with a complainant: (1) By forcible compulsion. (2) By threat of forcible compulsion that would prevent resistance by a person of with a complainant: (1) By forcible compulsion. (2) By threat of forcible compulsion that would prevent resistance by a person of
reasonable resolution. The element of force needs to be such as to demonstrate an absence of consent, inducing submission without reasonable resolution. The element of force needs to be such as to demonstrate an absence of consent, inducing submission without
further resistance. Commonwealth v. Buffington, 574 Pa. 29, 42, 828 A.2d 1024, 1031 (2003). further resistance. Commonwealth v. Buffington, 574 Pa. 29, 42, 828 A.2d 1024, 1031 (2003).
6 18 Pa.Cons.stat.ann. 3122.1, Statutory Sexual Assault: a person commits a felony of the second degree when that person engages 6 18 Pa.Cons.stat.ann. 3122.1, Statutory Sexual Assault: a person commits a felony of the second degree when that person engages
in sexual intercourse with a complainant to whom the person is not married who is under the age of 16 years and that person is either: in sexual intercourse with a complainant to whom the person is not married who is under the age of 16 years and that person is either:
(1) four years older but less than eight years older than the complainant; or eight years older but less than 11 years older than the (1) four years older but less than eight years older than the complainant; or eight years older but less than 11 years older than the
complainant. Additionally, 18 Pa.Cons.stat.ann. 3121 (c): A person commits the offense of rape of a child, a felony of the first complainant. Additionally, 18 Pa.Cons.stat.ann. 3121 (c): A person commits the offense of rape of a child, a felony of the first
degree, when the person engages in sexual intercourse with a complainant who is less than 13 years of age. (emphasis added). The degree, when the person engages in sexual intercourse with a complainant who is less than 13 years of age. (emphasis added). The
crime of rape of a child is a strict liability offense, imposing criminal liability regardless of whether the offender knew the correct age of crime of rape of a child is a strict liability offense, imposing criminal liability regardless of whether the offender knew the correct age of
the victim. Commonwealth v. Dennis, 784 A.2d 179, 181-182 (Pa.Super. 2001), appeal denied, 568 Pa. 733, 798 A.2d 1287 (2002). the victim. Commonwealth v. Dennis, 784 A.2d 179, 181-182 (Pa.Super. 2001), appeal denied, 568 Pa. 733, 798 A.2d 1287 (2002).
7 18 Pa.Cons.stat.ann. 3121(a)(5): A person commits a felony of the first degree when the person engages in sexual intercourse with 7 18 Pa.Cons.stat.ann. 3121(a)(5): A person commits a felony of the first degree when the person engages in sexual intercourse with
a complainant (5) Who suffers from a mental disability which renders the complainant incapable of consent. In Commonwealth v. a complainant (5) Who suffers from a mental disability which renders the complainant incapable of consent. In Commonwealth v.
Thomson, 673 A.2d 357, 359-360 (Pa. Super. 1996), affd, 546 Pa. 679, 686 A.2d 1310 (1996), the Superior Court of Pennsylvania held Thomson, 673 A.2d 357, 359-360 (Pa. Super. 1996), affd, 546 Pa. 679, 686 A.2d 1310 (1996), the Superior Court of Pennsylvania held
that expert testimony supported the jurys finding that the victim was incapable of consent because of mental deficiency, i.e., mild mental that expert testimony supported the jurys finding that the victim was incapable of consent because of mental deficiency, i.e., mild mental
retardation with a limited I.Q. retardation with a limited I.Q.
if there is a minor or adult involved who is unconscious or unaware that the if there is a minor or adult involved who is unconscious or unaware that the
sexual intercourse is occurring.8 sexual intercourse is occurring.8
A. MAJOR SEXUAL ASSAULT CRIMES IN PENNSYLVANIA A. MAJOR SEXUAL ASSAULT CRIMES IN PENNSYLVANIA
Rape, Sexual Assault and Involuntary Deviate Sexual Intercourse Rape, Sexual Assault and Involuntary Deviate Sexual Intercourse
In Pennsylvania, rape and sexual assault are gender neutral, and may be In Pennsylvania, rape and sexual assault are gender neutral, and may be
perpetrated against an adult or child victim. Both rape and sexual assault may be perpetrated against an adult or child victim. Both rape and sexual assault may be
perpetrated against a spouse. Both typically require as the assaultive conduct sexual perpetrated against a spouse. Both typically require as the assaultive conduct sexual
intercourse, with some showing of penetration, however slight. The primary distinction intercourse, with some showing of penetration, however slight. The primary distinction
between the crimes of rape and sexual assault is that rape requires some evidence of between the crimes of rape and sexual assault is that rape requires some evidence of
force, either actual or threatened, while sexual assault requires only that the complainant force, either actual or threatened, while sexual assault requires only that the complainant
did not consent to the sexual conduct. did not consent to the sexual conduct.
Involuntary deviate sexual assault is typically charged when the defendant, by Involuntary deviate sexual assault is typically charged when the defendant, by
physical compulsion or threats thereof, coerces the victim to engage in acts of anal or physical compulsion or threats thereof, coerces the victim to engage in acts of anal or
oral intercourse. oral intercourse.
The Table of Contents in the Crimes Code for sexual offenses in Pennsylvania is as The Table of Contents in the Crimes Code for sexual offenses in Pennsylvania is as
follows: follows:
18 Pa.Cons.Stat.Ann. PA.II, Art. B, Ch. 31 18 Pa.Cons.Stat.Ann. PA.II, Art. B, Ch. 31

Chapter 31 SEXUAL OFFENSES Chapter 31 SEXUAL OFFENSES
SUBCHAPTER A. GENERAL PROVISIONS SUBCHAPTER A. GENERAL PROVISIONS

3101 Definitions 3101 Definitions
3102 Mistake As To Age 3102 Mistake As To Age
3103 Repealed 3103 Repealed
3104 Evidence Of Victims Sexual Conduct 3104 Evidence Of Victims Sexual Conduct
3105 Prompt Complaint 3105 Prompt Complaint
3106 Testimony Of Complainants 3106 Testimony Of Complainants
3107 Resistance Not Required 3107 Resistance Not Required
SUBCHAPTER B. DEFINITION OF OFFENSES SUBCHAPTER B. DEFINITION OF OFFENSES

3121 Rape 3121 Rape
8 18 Pa.Cons.stat.ann. 3121(a)(3): A person commits a felony of the first degree when the person engages in sexual intercourse 8 18 Pa.Cons.stat.ann. 3121(a)(3): A person commits a felony of the first degree when the person engages in sexual intercourse
with a complainant (3) Who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is with a complainant (3) Who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is
occurring. The Pennsylvania Supreme Court has defined an unconscious person, for purposes of this statute, as a person [who] lack[s] occurring. The Pennsylvania Supreme Court has defined an unconscious person, for purposes of this statute, as a person [who] lack[s]
the conscious awareness they would possess in the normal waking state. Commonwealth v. Widmer, 560 Pa. 308, 323, 744 A.2d 745, the conscious awareness they would possess in the normal waking state. Commonwealth v. Widmer, 560 Pa. 308, 323, 744 A.2d 745,
753 (2000). In Commonwealth v. Erney, 548 Pa. 467, 473, 698 A.2d 56, 59 (1997), the Pennsylvania Supreme Court held that an 753 (2000). In Commonwealth v. Erney, 548 Pa. 467, 473, 698 A.2d 56, 59 (1997), the Pennsylvania Supreme Court held that an
intoxicated victim who was intermittently unconscious throughout the sexual assault and in an impaired physical and mental condition intoxicated victim who was intermittently unconscious throughout the sexual assault and in an impaired physical and mental condition
was unable to knowingly consent, and therefore her submission to sexual intercourse was involuntary. In Commonwealth v. Wall, 953 was unable to knowingly consent, and therefore her submission to sexual intercourse was involuntary. In Commonwealth v. Wall, 953
A.2d 581, 584 (Pa.Super. 2008), appeal denied, 600 Pa. 733, 963 A.2d 470 (2008), the court held that a victim who was sleeping when A.2d 581, 584 (Pa.Super. 2008), appeal denied, 600 Pa. 733, 963 A.2d 470 (2008), the court held that a victim who was sleeping when
sexual intercourse was initiated by the offender is considered unconscious. See also, 18 Pa.Cons.stat.ann. 3121(a)(4): A person sexual intercourse was initiated by the offender is considered unconscious. See also, 18 Pa.Cons.stat.ann. 3121(a)(4): A person
commits a felony of the first degree when the person engages in sexual intercourse with a complainant (4) Where the person has commits a felony of the first degree when the person engages in sexual intercourse with a complainant (4) Where the person has
substantially impaired the complainants power to appraise or control his or her conduct by administering or employing, without the substantially impaired the complainants power to appraise or control his or her conduct by administering or employing, without the
knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance. knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance.
3122.1 Statutory Sexual Assault 3122.1 Statutory Sexual Assault

3123 Involuntary Deviate Sexual Intercourse 3123 Involuntary Deviate Sexual Intercourse
3124.1 Sexual Assault 3124.1 Sexual Assault
3124.2 Institutional Sexual Assault 3124.2 Institutional Sexual Assault
3125 Aggravated Indecent Assault 3125 Aggravated Indecent Assault
3126 Indecent Assault 3126 Indecent Assault
3127 Indecent Exposure 3127 Indecent Exposure
3129 Sexual Intercourse With Animal 3129 Sexual Intercourse With Animal
3130 Conduct Relating To Sex Offenders 3130 Conduct Relating To Sex Offenders
SUBCHAPTER C. LOSS OF PROPERTY RIGHTS SUBCHAPTER C. LOSS OF PROPERTY RIGHTS

3141 General Rule 3141 General Rule
3142 Process And Seizure 3142 Process And Seizure
3143 Custody Of Property 3143 Custody Of Property
3144 Disposal Of Property 3144 Disposal Of Property
For a more detailed description of sex crimes in Pennsylvania, see Chapters 2, 3 and 4. For a more detailed description of sex crimes in Pennsylvania, see Chapters 2, 3 and 4.
Rape is defined in 18 Pa.Cons.Stat.Ann. 3121. It is a first degree felony to Rape is defined in 18 Pa.Cons.Stat.Ann. 3121. It is a first degree felony to
engage in sexual intercourse with a complainant: engage in sexual intercourse with a complainant:
(1) by forcible compulsion; (1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of (2) by threat of forcible compulsion that would prevent resistance by a person of
reasonable resolution; reasonable resolution;
(3) who is unconscious or where the person knows that the complainant is (3) who is unconscious or where the person knows that the complainant is
unaware that the sexual intercourse is occurring; unaware that the sexual intercourse is occurring;
(4) where the person has substantially impaired the complainants power to (4) where the person has substantially impaired the complainants power to
appraise or control his or her conduct by administering or employing, without appraise or control his or her conduct by administering or employing, without
the knowledge of the complainant, drugs, intoxicants or other means for the the knowledge of the complainant, drugs, intoxicants or other means for the
purpose of preventing resistance; or purpose of preventing resistance; or
(5) who suffers from a mental disability which renders the complainant incapable (5) who suffers from a mental disability which renders the complainant incapable
of consent. of consent.
In addition to the statutory penalty, a defendant may be sentenced to an In addition to the statutory penalty, a defendant may be sentenced to an
additional term not to exceed ten years confinement and an additional amount not to additional term not to exceed ten years confinement and an additional amount not to
exceed $ 100,000 where the person engages in sexual intercourse with a complainant exceed $ 100,000 where the person engages in sexual intercourse with a complainant
and has substantially impaired the complainants power to appraise or control his or her and has substantially impaired the complainants power to appraise or control his or her
conduct by administering or employing, without the knowledge of the complainant, any conduct by administering or employing, without the knowledge of the complainant, any
substance for the purpose of preventing resistance through the inducement of euphoria, substance for the purpose of preventing resistance through the inducement of euphoria,
memory loss and any other effect of this substance. memory loss and any other effect of this substance.
Rape of a child, 18 Pa.Cons.Stat.Ann. 3121(c), is a felony of the first degree Rape of a child, 18 Pa.Cons.Stat.Ann. 3121(c), is a felony of the first degree
and occurs when the person engages in sexual intercourse with a complainant who is and occurs when the person engages in sexual intercourse with a complainant who is
less than 13 years of age. Upon conviction, a defendant may be sentenced to a term of less than 13 years of age. Upon conviction, a defendant may be sentenced to a term of
imprisonment of up to forty years. Rape of a child with serious bodily injury, 18 Pa.Cons. imprisonment of up to forty years. Rape of a child with serious bodily injury, 18 Pa.Cons.
Stat.Ann. 3121(d), is a felony of the first degree and occurs when the person engages Stat.Ann. 3121(d), is a felony of the first degree and occurs when the person engages
in sexual intercourse with a complainant who is less than 13 years of age and the in sexual intercourse with a complainant who is less than 13 years of age and the
complainant suffers serious bodily injury in the course of the offense. Upon conviction of complainant suffers serious bodily injury in the course of the offense. Upon conviction of
rape of a child with serious bodily injury, a defendant may be sentenced up to a maximum rape of a child with serious bodily injury, a defendant may be sentenced up to a maximum
term of life imprisonment. 18 Pa.Cons.Stat.Ann. 3121(e). term of life imprisonment. 18 Pa.Cons.Stat.Ann. 3121(e).
Sexual assault is defined in 18 Pa.Cons.Stat.Ann. 3124.1 which states, Except Sexual assault is defined in 18 Pa.Cons.Stat.Ann. 3124.1 which states, Except
as provided in section 3121 (relating to rape) or 3123 (relating to involuntary deviate as provided in section 3121 (relating to rape) or 3123 (relating to involuntary deviate
sexual intercourse), a person commits a felony of the second degree when that person sexual intercourse), a person commits a felony of the second degree when that person
engages in sexual intercourse or deviate sexual intercourse with a complainant without engages in sexual intercourse or deviate sexual intercourse with a complainant without
the complainants consent. the complainants consent.
Involuntary deviate sexual intercourse is defined in 18 Pa.Cons.Stat.Ann. Involuntary deviate sexual intercourse is defined in 18 Pa.Cons.Stat.Ann.
3123 which states: 3123 which states:
(a) Offense defined. -- A person commits a felony of the first degree when (a) Offense defined. -- A person commits a felony of the first degree when
the person engages in deviate sexual intercourse with a complainant: the person engages in deviate sexual intercourse with a complainant:
(1) by forcible compulsion; (1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance (2) by threat of forcible compulsion that would prevent resistance
by a person of reasonable resolution; by a person of reasonable resolution;
(3) who is unconscious or where the person knows that the (3) who is unconscious or where the person knows that the
complainant is unaware that the sexual intercourse is occurring; complainant is unaware that the sexual intercourse is occurring;
(4) where the person has substantially impaired the complainants (4) where the person has substantially impaired the complainants
power to appraise or control his or her conduct by administering power to appraise or control his or her conduct by administering
or employing, without the knowledge of the complainant, drugs, or employing, without the knowledge of the complainant, drugs,
intoxicants or other means for the purpose of preventing intoxicants or other means for the purpose of preventing
resistance; resistance;
(5) who suffers from a mental disability which renders him or her (5) who suffers from a mental disability which renders him or her
incapable of consent; or incapable of consent; or
(6) Deleted by 2002, Dec. 9, P.L. 1350, No. 162, 2, effective in 60 (6) Deleted by 2002, Dec. 9, P.L. 1350, No. 162, 2, effective in 60
days. days.
(7) who is less than 16 years of age and the person is four or more (7) who is less than 16 years of age and the person is four or more
years older than the complainant and the complainant and person years older than the complainant and the complainant and person
are not married to each other. are not married to each other.
(b) Involuntary deviate sexual intercourse with a child. -- A person (b) Involuntary deviate sexual intercourse with a child. -- A person
commits involuntary deviate sexual intercourse with a child, a felony of commits involuntary deviate sexual intercourse with a child, a felony of
the first degree, when the person engages in deviate sexual intercourse the first degree, when the person engages in deviate sexual intercourse
with a complainant who is less than 13 years of age. with a complainant who is less than 13 years of age.
(c) Involuntary deviate sexual intercourse with a child with serious (c) Involuntary deviate sexual intercourse with a child with serious
bodily injury. -- A person commits an offense under this section with a bodily injury. -- A person commits an offense under this section with a
child resulting in serious bodily injury, a felony of the first degree, when child resulting in serious bodily injury, a felony of the first degree, when
the person violates this section and the complainant is less than 13 years the person violates this section and the complainant is less than 13 years
of age and the complainant suffers serious bodily injury in the course of of age and the complainant suffers serious bodily injury in the course of
the offense. the offense.
B. DEFINING SEXUAL VIOLENCE B. DEFINING SEXUAL VIOLENCE
While terms such as date rape and acquaintance rape are still used, it is While terms such as date rape and acquaintance rape are still used, it is
preferable to discuss sexual violence in terms of the legal statutes that identify each preferable to discuss sexual violence in terms of the legal statutes that identify each
criminal act. criminal act.
On its website,9 the Pennsylvania Coalition Against Rape describes sexual violence as: On its website,9 the Pennsylvania Coalition Against Rape describes sexual violence as:
Sexual violence violates a persons trust, autonomy and feeling of safety. It Sexual violence violates a persons trust, autonomy and feeling of safety. It
occurs any time a person is forced, coerced, and/or manipulated into any occurs any time a person is forced, coerced, and/or manipulated into any
unwanted sexual activity. unwanted sexual activity.
The range of sexual violence includes rape, incest, child sexual assault, ritual The range of sexual violence includes rape, incest, child sexual assault, ritual
abuse, date and acquaintance rape, statutory rape, marital or partner rape, abuse, date and acquaintance rape, statutory rape, marital or partner rape,
sexual exploitation, sexual contact, sexual harassment, exposure, human sexual exploitation, sexual contact, sexual harassment, exposure, human
trafficking and voyeurism. trafficking and voyeurism.
Rape is a crime. It is motivated by the need to control, humiliate, and harm. Rape is a crime. It is motivated by the need to control, humiliate, and harm.
It is not motivated by sexual desire. Rapists use sex as a weapon to dominate It is not motivated by sexual desire. Rapists use sex as a weapon to dominate
and hurt others. and hurt others.
C. COMPARING THE MYTHS OF SEXUAL VIOLENCE TO THE REALITY C. COMPARING THE MYTHS OF SEXUAL VIOLENCE TO THE REALITY
Although much research has been done on the nature of rape and sexual assault, Although much research has been done on the nature of rape and sexual assault,
many myths still permeate our culture. For example, one common misconception many myths still permeate our culture. For example, one common misconception
is that a woman is most likely to be raped by someone she does not know.10 Another is that a woman is most likely to be raped by someone she does not know.10 Another
misconception is that if a woman dresses in a certain way, or is under the influence of misconception is that if a woman dresses in a certain way, or is under the influence of
alcohol, she is inviting rape.11 It is important to be aware of these and other myths as alcohol, she is inviting rape.11 It is important to be aware of these and other myths as
they provide insight into the beliefs of potential jurors as well as the community at large. they provide insight into the beliefs of potential jurors as well as the community at large.
9 http://www.pcar.org/about-sexual-violence. 9 http://www.pcar.org/about-sexual-violence.
10 Lifetime Television Violence Against Women Study (2002) (Available from Penn, Schoen and Berland Associates, Washington, D.C.). 10 Lifetime Television Violence Against Women Study (2002) (Available from Penn, Schoen and Berland Associates, Washington, D.C.).
In 2010, of female rape or sexual assault victims, 25 percent were assaulted by a stranger, 48 percent by friends or acquaintances, and 17 In 2010, of female rape or sexual assault victims, 25 percent were assaulted by a stranger, 48 percent by friends or acquaintances, and 17
percent by intimate partners. See Jennifer L. Truman, Criminal Victimization, 2010, (Washington, DC: Bureau of Justice Statistics, U.S. percent by intimate partners. See Jennifer L. Truman, Criminal Victimization, 2010, (Washington, DC: Bureau of Justice Statistics, U.S.
Department of Justice, 2011). Department of Justice, 2011).
11 Office on Violence Against Women, Department of Justice, Myths and facts about sexual violence, retrieved May 3, 2006 from http:// 11 Office on Violence Against Women, Department of Justice, Myths and facts about sexual violence, retrieved May 3, 2006 from http://
www.usdoj.gov/ovw/MythsFactSexualViolence.htm. See also Office on Violence Against Women, Department of Justice, Sexual www.usdoj.gov/ovw/MythsFactSexualViolence.htm. See also Office on Violence Against Women, Department of Justice, Sexual
Assault, retrieved on March 28, 2014 at www.ovw.usdoj.gov/sexassault.htm. Assault, retrieved on March 28, 2014 at www.ovw.usdoj.gov/sexassault.htm.
These types of crimes typically lack physical evidence and independent witnesses, These types of crimes typically lack physical evidence and independent witnesses,
therefore directing the focus of the case to the credibility of the victim and the accused.12 therefore directing the focus of the case to the credibility of the victim and the accused.12
The reality of rape and sexual assault has been confirmed in numerous studies. Three of The reality of rape and sexual assault has been confirmed in numerous studies. Three of
the most preeminent sources examining sexual violence are: the most preeminent sources examining sexual violence are:
The National Crime Victimization Survey,13 The National Crime Victimization Survey,13
Rape in America Study,14 and Rape in America Study,14 and
The Extent, Nature, and Consequences of Rape Victimization: Findings from the The Extent, Nature, and Consequences of Rape Victimization: Findings from the
National Violence Against Women Survey.15 National Violence Against Women Survey.15
Highlights from these studies emphasize that: Highlights from these studies emphasize that:
1. Nonstranger Rape 1. Nonstranger Rape
Reality: Nonstranger or acquaintance rape is more common Reality: Nonstranger or acquaintance rape is more common
than stranger rape. than stranger rape.
[M]any, if not most, victims are acquainted with their attacker.16 [M]any, if not most, victims are acquainted with their attacker.16
Statistics show that 73 percent of rapes/sexual assaults were perpetrated by Statistics show that 73 percent of rapes/sexual assaults were perpetrated by
someone known to the victim.17 The Department of Justice found that among someone known to the victim.17 The Department of Justice found that among
victims 18 to 29 years old, two-thirds had a prior relationship with the rapist.18 victims 18 to 29 years old, two-thirds had a prior relationship with the rapist.18
Further examination of perpetrator/victim relationships reveals that about 85 Further examination of perpetrator/victim relationships reveals that about 85
to 90 percent of sexual assaults reported by college women are perpetrated by to 90 percent of sexual assaults reported by college women are perpetrated by
someone known to the victim, and about half occur on a date.19 someone known to the victim, and about half occur on a date.19
Acquaintance rape on college campuses is an increasing problem in Acquaintance rape on college campuses is an increasing problem in
America. As many as one in five women will be assaulted during their college America. As many as one in five women will be assaulted during their college
days, with freshiman who make up 63 percent of the victims at the highest days, with freshiman who make up 63 percent of the victims at the highest
risk. The Washington Post, March 26, 2014. Former President Jimmy Carter, risk. The Washington Post, March 26, 2014. Former President Jimmy Carter,
in support of the opinions in his new book, A Call To Action: Women, Religion, in support of the opinions in his new book, A Call To Action: Women, Religion,
Violence, and Power, recently said: Violence, and Power, recently said:
We also have a terrible amount of sexual abuse on college We also have a terrible amount of sexual abuse on college
campuses, including every university in America ... Only about 4 campuses, including every university in America ... Only about 4
percent of the rapes on college campuses are reported because the percent of the rapes on college campuses are reported because the
12 HE SAID, SHE SAID, SHE SAID: WHY PENNSLYVANIA SHOULD ADOPT FEDERAL RULES OF EVIDENCE 413 and 414, 52 12 HE SAID, SHE SAID, SHE SAID: WHY PENNSLYVANIA SHOULD ADOPT FEDERAL RULES OF EVIDENCE 413 and 414, 52
Vill.L.Rev. 641, 648 (Jessica Khan 2007). Vill.L.Rev. 641, 648 (Jessica Khan 2007).
13 Bureau of Justice Statistics (2002) National Crime Victimization Survey, Washington, D.C.: U.S. Department of Justice. The Bureau of 13 Bureau of Justice Statistics (2002) National Crime Victimization Survey, Washington, D.C.: U.S. Department of Justice. The Bureau of
Justice Statistics conducts the National Crime Victimization Survey (NCVS) every year. This survey measures reported and unreported Justice Statistics conducts the National Crime Victimization Survey (NCVS) every year. This survey measures reported and unreported
crime, including rape and other types of sexual assault. crime, including rape and other types of sexual assault.
14 Rape in America: A Report to the Nation (D.G. Kilpatrick, C.N. Edmunds, & A. Seymour 1992). 14 Rape in America: A Report to the Nation (D.G. Kilpatrick, C.N. Edmunds, & A. Seymour 1992).
15 National Institute of Justice, U.S. Department of Justice. (2006). Extent, nature, and consequences of rape victimization: findings from 15 National Institute of Justice, U.S. Department of Justice. (2006). Extent, nature, and consequences of rape victimization: findings from
the Violence Against Women survey. Retrieved May 9, 2006 from http://www.ncjrs.gov/pdffiles1/nij/210346.pdf. the Violence Against Women survey. Retrieved May 9, 2006 from http://www.ncjrs.gov/pdffiles1/nij/210346.pdf.
16 6 Rutgers J.L.&Pub.Poly 891 (Spring 2009). 16 6 Rutgers J.L.&Pub.Poly 891 (Spring 2009).
17 Bureau of Justice Statistics (2005) National Crime Victimization Survey, Washington, D.C.: U.S. Department of Justice.; RAINN (Rape, 17 Bureau of Justice Statistics (2005) National Crime Victimization Survey, Washington, D.C.: U.S. Department of Justice.; RAINN (Rape,
Abuse & Incent National Network), The Offenders The Rapist Isnt a Masked Stranger, retrieved March 28, 2014 from https://www. Abuse & Incent National Network), The Offenders The Rapist Isnt a Masked Stranger, retrieved March 28, 2014 from https://www.
rainn.org/get-information/statistics/sexual-assault-offenders. rainn.org/get-information/statistics/sexual-assault-offenders.
18 Rape Myths and Facts, 2014, Tennessee Coalition to End Domestic and Sexual Violence, retrieved on March 28, 2014 from TNblue.org. 18 Rape Myths and Facts, 2014, Tennessee Coalition to End Domestic and Sexual Violence, retrieved on March 28, 2014 from TNblue.org.
19 National Institute of Justice, U.S. Department of Justice, Sexual Assault on Campus, retrieved March 28, 2014 from http://www.nij.gov/ 19 National Institute of Justice, U.S. Department of Justice, Sexual Assault on Campus, retrieved March 28, 2014 from http://www.nij.gov/
topics/crime/rape-sexual-violence/campus/Pages/know-attacker.aspx. topics/crime/rape-sexual-violence/campus/Pages/know-attacker.aspx.
presidents of universities and the deans and so forth dont want presidents of universities and the deans and so forth dont want
the reputation of the university to be hurt by saying that sexual the reputation of the university to be hurt by saying that sexual
assaults are occurring.20 assaults are occurring.20
As recently reported, most college sexual assault victims are assaulted by As recently reported, most college sexual assault victims are assaulted by
someone they know, and statistics demonstrate that parties are often the site of someone they know, and statistics demonstrate that parties are often the site of
these crimes.21 The report continues: these crimes.21 The report continues:
Notably, campus assailants are often serial offenders: one study Notably, campus assailants are often serial offenders: one study
found that of the men who admitted to committing rape or found that of the men who admitted to committing rape or
attempted rape, some 63% said they committed an average of six attempted rape, some 63% said they committed an average of six
rapes each. College sexual assault survivors suffer from high levels rapes each. College sexual assault survivors suffer from high levels
of mental health problems (like depression and PTSD) and drug of mental health problems (like depression and PTSD) and drug
and alcohol abuse. Reporting rates are also particularly low. and alcohol abuse. Reporting rates are also particularly low.
2. Use of Weapons 2. Use of Weapons
Reality: Few rapes and sexual assaults involve the use of a Reality: Few rapes and sexual assaults involve the use of a
weapon. weapon.
Again, the reality of sexual assault is very different from public perception. Again, the reality of sexual assault is very different from public perception.
The Bureau of Justice Statistics, Department of Justice, states that a weapon is The Bureau of Justice Statistics, Department of Justice, states that a weapon is
used in an estimated 30% of stranger rapes and in only 15% of rapes committed used in an estimated 30% of stranger rapes and in only 15% of rapes committed
by someone known to the victim.22 In 2002, only four percent of rapes/sexual by someone known to the victim.22 In 2002, only four percent of rapes/sexual
assaults involved the use of a firearm, and only two percent involved the use of a assaults involved the use of a firearm, and only two percent involved the use of a
knife.23 knife.23
Rapists are far more likely to gain control of their victims through Rapists are far more likely to gain control of their victims through
deception, manipulation, and betrayal of the victims trust. Of course, this is deception, manipulation, and betrayal of the victims trust. Of course, this is
not to say that rapes and sexual assaults without weapons are not violent or not to say that rapes and sexual assaults without weapons are not violent or
forcible. forcible.
3. Victim Injury 3. Victim Injury
Reality: It is rare for a rape victim to sustain any visible Reality: It is rare for a rape victim to sustain any visible
physical injuries in addition to the rape. physical injuries in addition to the rape.
Few victims sustain visible physical injuries as a result of a rape. From Few victims sustain visible physical injuries as a result of a rape. From
1992 2000, approximately 67 percent of victims of completed rapes sustained 1992 2000, approximately 67 percent of victims of completed rapes sustained
no bruises, scratches, cuts, or other visible injuries.24 Genital injury may or may no bruises, scratches, cuts, or other visible injuries.24 Genital injury may or may
20 The Oregonia, March 30, 2014. 20 The Oregonia, March 30, 2014.
21 Rape and Sexual Assault: A Renewed Call to Action, published by The White House Council on Women and Girls, January 2014, 21 Rape and Sexual Assault: A Renewed Call to Action, published by The White House Council on Women and Girls, January 2014,
retrieved on September 4, 2014 from http://www.whitehouse.gov/sites/default/files/docs/sexual_assault_report_1-21-14.pdf. retrieved on September 4, 2014 from http://www.whitehouse.gov/sites/default/files/docs/sexual_assault_report_1-21-14.pdf.
22 Bureau of Justice Statistics (2012) National Crime Victimization Survey, Washington, D.C.: U.S. Department of Justice; Rape Myths 22 Bureau of Justice Statistics (2012) National Crime Victimization Survey, Washington, D.C.: U.S. Department of Justice; Rape Myths
and Facts, 2014, Tennessee Coalition to End Domestic and Sexual Violence, retrieved on March 28, 2014 from TNblue.org. and Facts, 2014, Tennessee Coalition to End Domestic and Sexual Violence, retrieved on March 28, 2014 from TNblue.org.
23 Bureau of Justice Statistics (2012) National Crime Victimization Survey, Washington, D.C.: U.S. Department of Justice; See also, 23 Bureau of Justice Statistics (2012) National Crime Victimization Survey, Washington, D.C.: U.S. Department of Justice; See also,
Criminal Victimization in the United States, 2006 Statistical Tables, http;//bjs.ojp.usdog.gov. Criminal Victimization in the United States, 2006 Statistical Tables, http;//bjs.ojp.usdog.gov.
24 Id. 24 Id.
not be present after a rape/sexual assault. not be present after a rape/sexual assault.
Some people think that you cannot be forced to have sex against Some people think that you cannot be forced to have sex against
your will. The truth is that you can be, either by physical force your will. The truth is that you can be, either by physical force
or threat of injury or death. Cooperation does not mean consent. or threat of injury or death. Cooperation does not mean consent.
Fearing serious injury or death during a rape, many victims do not Fearing serious injury or death during a rape, many victims do not
resist the attack and do not sustain any bruises, marks, or other resist the attack and do not sustain any bruises, marks, or other
visible physical injuries. You cannot always tell someone has been visible physical injuries. You cannot always tell someone has been
raped just by looking at her. raped just by looking at her.
Sexual Assault Victimization, Help Series Brochure, Office for Victims of Crime, The Sexual Assault Victimization, Help Series Brochure, Office for Victims of Crime, The
National Center for Victims of Crime (2002). National Center for Victims of Crime (2002).
For a more in-depth discussion on genital injury see section 1.4(A)(2). For a more in-depth discussion on genital injury see section 1.4(A)(2).
4. Reporting of Rape and Sexual Assault 4. Reporting of Rape and Sexual Assault
Reality: Rape and sexual assault are underreported crimes. Reality: Rape and sexual assault are underreported crimes.
Statistics regarding the percentage of reported rapes and sexual assaults Statistics regarding the percentage of reported rapes and sexual assaults
vary greatly depending on the definitions used, the sample of victims studied, and vary greatly depending on the definitions used, the sample of victims studied, and
the way in which the questions are phrased. However, research overwhelmingly the way in which the questions are phrased. However, research overwhelmingly
demonstrates that rape and sexual assault are underreported crimes.25 Dr. Dean demonstrates that rape and sexual assault are underreported crimes.25 Dr. Dean
Kilpartick found, as stated in Drug-Facilitated, Incapacitated and Forcible Kilpartick found, as stated in Drug-Facilitated, Incapacitated and Forcible
Rape: A NATIONAL STUDY, that in 2006 only 18% of forcible rape victims and Rape: A NATIONAL STUDY, that in 2006 only 18% of forcible rape victims and
10% of drug-induced rape victims reported the crime to law enforcement.26 10% of drug-induced rape victims reported the crime to law enforcement.26
According to the Rape in America Study, only 16 percent of rapes were According to the Rape in America Study, only 16 percent of rapes were
ever reported to police.27 ever reported to police.27
Forcible rape, as defined in the FBIs Uniform Crime Reporting (UCR) Forcible rape, as defined in the FBIs Uniform Crime Reporting (UCR)
Program, is defined as: Program, is defined as:
Penetration, no matter how slight, of the vagina or anus with any Penetration, no matter how slight, of the vagina or anus with any
body part or object, or oral penetration by a sex organ of another body part or object, or oral penetration by a sex organ of another
person, without the consent of the victim.28 person, without the consent of the victim.28
In the data collection pursuant to the UCR Program, the Program counts In the data collection pursuant to the UCR Program, the Program counts
one offense for each female victim of a forcible rape, attempted forcible rape, or one offense for each female victim of a forcible rape, attempted forcible rape, or
assault with intent to rape, regardless of the victims age. A rape by force involving assault with intent to rape, regardless of the victims age. A rape by force involving
a female victim and a familial offender is counted as a forcible rape and not an act a female victim and a familial offender is counted as a forcible rape and not an act
25 D.G. Kilpatrick, C.N. Edmunds, & A. Seymour. 1992. Rape in America: A Report to the Nation, National Victim Center and Crime 25 D.G. Kilpatrick, C.N. Edmunds, & A. Seymour. 1992. Rape in America: A Report to the Nation, National Victim Center and Crime
Victims Research and Treatment Center. Victims Research and Treatment Center.
26 Kilpartick et al., Drug-FaCilitated, inCaPaCitated and ForCible raPe: a national studY (2007). 26 Kilpartick et al., Drug-FaCilitated, inCaPaCitated and ForCible raPe: a national studY (2007).
27 D.G. Kilpatrick, C.N. Edmunds, & A. Seymour. 1992. Rape in America: A Report to the Nation, National Victim Center and Crime 27 D.G. Kilpatrick, C.N. Edmunds, & A. Seymour. 1992. Rape in America: A Report to the Nation, National Victim Center and Crime
Victims Research and Treatment Center. Victims Research and Treatment Center.
28 Reporting Rape in 2013, Criminal Justice Information Services (CJIS) Division, Uniform Crime Reporting Program, U.S. Department 28 Reporting Rape in 2013, Criminal Justice Information Services (CJIS) Division, Uniform Crime Reporting Program, U.S. Department
of Justice, Federal Bureau of Investigation, retrieved on March 26, 2014: http://www.fbi.gov/about-us/cjis/ucr/recent-program-updates/ of Justice, Federal Bureau of Investigation, retrieved on March 26, 2014: http://www.fbi.gov/about-us/cjis/ucr/recent-program-updates/
reporting-rape-in-2013. reporting-rape-in-2013.
of incest. All other crimes of a sexual nature are considered to be Part II offenses; of incest. All other crimes of a sexual nature are considered to be Part II offenses;
as such, the UCR Program collects only arrest data for those crimes. The offense as such, the UCR Program collects only arrest data for those crimes. The offense
of statutory rape, in which no force is used but the female victim is under the of statutory rape, in which no force is used but the female victim is under the
age of consent, is included in the arrest total for the sex offenses category. Sexual age of consent, is included in the arrest total for the sex offenses category. Sexual
attacks on males are counted as aggravated assaults or sex offenses, depending attacks on males are counted as aggravated assaults or sex offenses, depending
on the circumstances and the extent of any injuries.29 on the circumstances and the extent of any injuries.29
There were an estimated 84,376 forcible rapes reported to law enforcement There were an estimated 84,376 forcible rapes reported to law enforcement
in 2012. This estimate was 0.2 percent higher than the 2011 estimate, but 7.0 in 2012. This estimate was 0.2 percent higher than the 2011 estimate, but 7.0
percent and 10.1 percent lower than the 2008 and 2003 estimates, respectively.30 percent and 10.1 percent lower than the 2008 and 2003 estimates, respectively.30
Child victimization is also underreported. Research by Finkelhor and Child victimization is also underreported. Research by Finkelhor and
Dzubia-Leatherman (1994) shows that levels of child victimization far exceed Dzubia-Leatherman (1994) shows that levels of child victimization far exceed
those reported in official government victimization statistics.31 The researchers those reported in official government victimization statistics.31 The researchers
interviewed children between the ages of 10 and 16 years of age and found interviewed children between the ages of 10 and 16 years of age and found
sexual abuse involving physical contact to be at rates five times higher than the sexual abuse involving physical contact to be at rates five times higher than the
0.1 percent reported in the National Crime Survey. In a subsequent international 0.1 percent reported in the National Crime Survey. In a subsequent international
survey, Finkelhor found rates of abuse to be consistent with his American study survey, Finkelhor found rates of abuse to be consistent with his American study
(1994).32 (1994).32
Victims cite the following reasons for not reporting sexual violence: Victims cite the following reasons for not reporting sexual violence:
the victim does not want family members to know about the assault; the victim does not want family members to know about the assault;
they have concerns others will find out (including the victims name being they have concerns others will find out (including the victims name being
made public); and made public); and
they fear blame for the assault by family, friends, and others.33 they fear blame for the assault by family, friends, and others.33
Children may be reluctant to disclose sexual abuse because they fear the Children may be reluctant to disclose sexual abuse because they fear the
perpetrator, have a fondness for the perpetrator, or are afraid of upsetting the perpetrator, have a fondness for the perpetrator, or are afraid of upsetting the
family structure. In cases of incest, family dynamics may normalize the sexual family structure. In cases of incest, family dynamics may normalize the sexual
abuse or reinforce the need for family members to keep quite about the abuse. abuse or reinforce the need for family members to keep quite about the abuse.
There have been recent developments which have caused an increase in There have been recent developments which have caused an increase in
public attention on sexual assault cases, which may affect the number of incidents public attention on sexual assault cases, which may affect the number of incidents
which are reported. For example, the Nashville Sexual Assault Center has reported which are reported. For example, the Nashville Sexual Assault Center has reported
an increase in the number of victims stepping forward to report sexual abuse, an increase in the number of victims stepping forward to report sexual abuse,
attributed in part to intense coverage of former Penn State University assistant attributed in part to intense coverage of former Penn State University assistant
football coach Jerry Sandusky.34 football coach Jerry Sandusky.34
29 Federal Bureau of Investigation. (2012) Crime in the United States, Uniform Crime Reports, 2012, Washington, DC: U.S. Department 29 Federal Bureau of Investigation. (2012) Crime in the United States, Uniform Crime Reports, 2012, Washington, DC: U.S. Department
of Justice. of Justice.
30 Id. 30 Id.
31 Finkelhor, D. (1994) The international epidemiology of child sexual abuse, Child Abuse & Neglect, 18: 413-420. 31 Finkelhor, D. (1994) The international epidemiology of child sexual abuse, Child Abuse & Neglect, 18: 413-420.
32 Id. 32 Id.
33 Id. 33 Id.
34 Study: Sexual Assaults Greatly Underreported, USA Today, 11-19-13. The Superior Court of Pennsylvania denied Jerry Sanduskys 34 Study: Sexual Assaults Greatly Underreported, USA Today, 11-19-13. The Superior Court of Pennsylvania denied Jerry Sanduskys
appeal on October 2, 2013, Commonwealth v. Sandusky, 77 A.3d 663 (Pa. Super. 2013), appeal denied, --- Pa. ---, 81 A.2d 77 (2013). appeal on October 2, 2013, Commonwealth v. Sandusky, 77 A.3d 663 (Pa. Super. 2013), appeal denied, --- Pa. ---, 81 A.2d 77 (2013).
5. False Reporting 5. False Reporting
Reality: Statistically, very few people lie about being raped. Reality: Statistically, very few people lie about being raped.
It is difficult on both a national and state level to determine how many It is difficult on both a national and state level to determine how many
rape allegations are false. The reasons for this difficulty lie with the methodology rape allegations are false. The reasons for this difficulty lie with the methodology
used to collect data on sexual violence as well as the lack of rigorous research on used to collect data on sexual violence as well as the lack of rigorous research on
the subject. the subject.
Historically, the Federal Bureau of Investigation (FBI) collected and Historically, the Federal Bureau of Investigation (FBI) collected and
published data submitted by each state through the Uniform Crime Report (UCR). published data submitted by each state through the Uniform Crime Report (UCR).
Until 1997, the FBI included a paragraph in their report noting that the average Until 1997, the FBI included a paragraph in their report noting that the average
rate for unfounded cases of forcible rape was eight percent as compared rate for unfounded cases of forcible rape was eight percent as compared
with that of other crimes which was only two percent.35 Cases were counted as with that of other crimes which was only two percent.35 Cases were counted as
unfounded if: unfounded if:
There was insufficient evidence to determine if the intercourse were There was insufficient evidence to determine if the intercourse were
consensual. consensual.
Police were unable to locate the victim. Police were unable to locate the victim.
The victim decided not to follow through with the prosecution. The victim decided not to follow through with the prosecution.
The victim repeatedly changed the account of the rape incident. The victim repeatedly changed the account of the rape incident.
The victim recanted. The victim recanted.
The allegation was found to be false. The allegation was found to be false.
One inconsistency with the UCR is that the definitions used in the report One inconsistency with the UCR is that the definitions used in the report
do not include all aspects of sexual violence, only rape of women. As of 2004, the do not include all aspects of sexual violence, only rape of women. As of 2004, the
UCR still does not include data on rape and sexual assault of males, victims with UCR still does not include data on rape and sexual assault of males, victims with
disabilities, children under the age of 12 years, and sexual assault by anal or oral disabilities, children under the age of 12 years, and sexual assault by anal or oral
copulation.36 copulation.36
Another caveat to the information submitted for the UCR is that, while Another caveat to the information submitted for the UCR is that, while
data is provided to the FBI by every state, not every police department within data is provided to the FBI by every state, not every police department within
each state submitted information. For example, a report filed in 2004 pursuant to each state submitted information. For example, a report filed in 2004 pursuant to
the Uniform Crime Reporting Act, 18 Pa.Stat. 20.501 20.509, indicated that the Uniform Crime Reporting Act, 18 Pa.Stat. 20.501 20.509, indicated that
1,056 out of 1,200 jurisdictions in Pennsylvania submitted data. While a majority 1,056 out of 1,200 jurisdictions in Pennsylvania submitted data. While a majority
of jurisdictions did report, it is unknown whether the data represented one month of jurisdictions did report, it is unknown whether the data represented one month
or an entire year. The purpose behind the Pennsylvania Uniform Crime Reporting or an entire year. The purpose behind the Pennsylvania Uniform Crime Reporting
act was to standardized UCR reporting. The law became effective in June 2005. act was to standardized UCR reporting. The law became effective in June 2005.
It mandates and standardizes reporting for all law enforcement agencies within It mandates and standardizes reporting for all law enforcement agencies within
Pennsylvania. Pennsylvania.
6. Victim Statistics 6. Victim Statistics
Reality: The overwhelming majority of sexual assaults are Reality: The overwhelming majority of sexual assaults are
perpetrated against women. perpetrated against women.
Although rape is a gender-neutral crime, women are more likely to be Although rape is a gender-neutral crime, women are more likely to be
victims of sexual violence than are men.37 In 2012, there was a forcible rape every victims of sexual violence than are men.37 In 2012, there was a forcible rape every
6.2 minutes in America. In Pennsylvania, the most recent data available is for the 6.2 minutes in America. In Pennsylvania, the most recent data available is for the
year 2012, during which there were 3,327 reports of forcible rape.38 During the year 2012, during which there were 3,327 reports of forcible rape.38 During the
same period, there were 947 arrests in Pennsylvania for forcible rape.39 same period, there were 947 arrests in Pennsylvania for forcible rape.39
From 1992 2000, females victims accounted for 94 percent of all From 1992 2000, females victims accounted for 94 percent of all
completed rapes, 91 percent of all attempted rapes, and 89 percent of all completed rapes, 91 percent of all attempted rapes, and 89 percent of all
completed and attempted sexual assaults.40 completed and attempted sexual assaults.40
It is difficult to determine the number of male victims of sexual violence It is difficult to determine the number of male victims of sexual violence
for a variety of reasons. As stated previously, the FBI Uniform Crimes Report only for a variety of reasons. As stated previously, the FBI Uniform Crimes Report only
tracks sexual assault data on female victims. Also, males who are sexually abused tracks sexual assault data on female victims. Also, males who are sexually abused
are often reluctant to come forward or seek mental health services because are often reluctant to come forward or seek mental health services because
of overwhelming shame and embarrassment. The few studies that do exist of overwhelming shame and embarrassment. The few studies that do exist
show rates of sexual violence against men to be between five and twenty-three show rates of sexual violence against men to be between five and twenty-three
percent.41 Because perpetrators target vulnerable victims, it is not surprising percent.41 Because perpetrators target vulnerable victims, it is not surprising
that the prevalence of sexual abuse against males with mental illnesses or mental that the prevalence of sexual abuse against males with mental illnesses or mental
health disorders has been reported at rates as high as 32 percent.42 health disorders has been reported at rates as high as 32 percent.42
7. Perpetrator Statistics 7. Perpetrator Statistics
Reality: The majority of rapes and sexual assaults are Reality: The majority of rapes and sexual assaults are
committed by males. committed by males.
In her article published in the Penn State Law Review, Fall 2004, In her article published in the Penn State Law Review, Fall 2004,
SENTENCING OF ADULT OFFENDERS IN CASES INVOLVING SEXUAL ABUSE OF SENTENCING OF ADULT OFFENDERS IN CASES INVOLVING SEXUAL ABUSE OF
CHILDREN: TOO LITTLE, TOO LATE? A VIEW FROM THE PENNSYLVANIA BENCH, CHILDREN: TOO LITTLE, TOO LATE? A VIEW FROM THE PENNSYLVANIA BENCH,
Justice Debra Todd of the Pennsylvania Supreme Court reported: Justice Debra Todd of the Pennsylvania Supreme Court reported:
Sex offenders represent 4.7% of the nearly five million convicted Sex offenders represent 4.7% of the nearly five million convicted
offenders serving time in federal or state prisons or jails, or on offenders serving time in federal or state prisons or jails, or on
37 National Institute of Justice, U.S. Department of Justice. (2010), Victims and Perpetrators, retrieved on March 28, 2014 from http:// 37 National Institute of Justice, U.S. Department of Justice. (2010), Victims and Perpetrators, retrieved on March 28, 2014 from http://
www.nij.gov/topics/crime/rape-sexual-violence. See also, National Institute of Justice, U.S. Department of Justice. (2006), Extent, www.nij.gov/topics/crime/rape-sexual-violence. See also, National Institute of Justice, U.S. Department of Justice. (2006), Extent,
Nature, and Consequences of Rape Victimization: Findings From the National Violence Against Women Survey, retrieved on March 28, Nature, and Consequences of Rape Victimization: Findings From the National Violence Against Women Survey, retrieved on March 28,
2014 from https://www.ncjrs.gov/pdffiles1/nij/210346.pdf. 2014 from https://www.ncjrs.gov/pdffiles1/nij/210346.pdf.
38 See Bureau of Justice Statistics (2007) National Crime Victimization Survey, Washington, D.C.: U.S. Department of Justice. The Bureau 38 See Bureau of Justice Statistics (2007) National Crime Victimization Survey, Washington, D.C.: U.S. Department of Justice. The Bureau
of Justice Statistics utilizes information accumulated by the FBI, Uniform Crime Reports, as prepared by the National Archive of of Justice Statistics utilizes information accumulated by the FBI, Uniform Crime Reports, as prepared by the National Archive of
Criminal Justice Data. Criminal Justice Data.
39 Id. 39 Id.
40 Id. 40 Id.
41 Belkin, D. S., Greene, A. F., Rodrique, J. R., & Boggs, S. R. (1994). Psychopathology and history of sexual abuse. Journal of Interpersonal 41 Belkin, D. S., Greene, A. F., Rodrique, J. R., & Boggs, S. R. (1994). Psychopathology and history of sexual abuse. Journal of Interpersonal
Violence, 9, 535-547. Violence, 9, 535-547.
42 Sigler, J.I. (2000). Forced sexual intercourse among intimates. Journal of Interpersonal Violence, 15(1). 42 Sigler, J.I. (2000). Forced sexual intercourse among intimates. Journal of Interpersonal Violence, 15(1).
probation or parole. They comprise 1% of the federal prison probation or parole. They comprise 1% of the federal prison
population, 9.7% of the state prison population, 3.4% of the population, 9.7% of the state prison population, 3.4% of the
nations jail inmates, 3.6% of the offenders on probation and 4% of nations jail inmates, 3.6% of the offenders on probation and 4% of
the offenders on parole. the offenders on parole.
109 Penn St. L. Rev. 487, 513 (2004).43 109 Penn St. L. Rev. 487, 513 (2004).43
In single-offender rapes and sexual assaults, the percentage of male In single-offender rapes and sexual assaults, the percentage of male
offenders is nearly 99 percent.44 Research about female sex offending is limited, offenders is nearly 99 percent.44 Research about female sex offending is limited,
but studies suggest that female sex offending occurs more frequently than but studies suggest that female sex offending occurs more frequently than
reported and is most often directed toward children under the care of the female reported and is most often directed toward children under the care of the female
offender.45 offender.45
8. Delay in Reporting 8. Delay in Reporting
Reality: An individual will immediately report their Reality: An individual will immediately report their
sexual assault. sexual assault.
Research shows that victims do not immediately report their rape to Research shows that victims do not immediately report their rape to
authorities; however, they may tell a friend, relative, or someone they trust. While authorities; however, they may tell a friend, relative, or someone they trust. While
victims of burglary, theft, or robbery are likely to contact authorities immediately, victims of burglary, theft, or robbery are likely to contact authorities immediately,
victims of sexual violence often need time to process the event; particularly if victims of sexual violence often need time to process the event; particularly if
they know their attacker. Reasons cited for delayed reporting include:46 they know their attacker. Reasons cited for delayed reporting include:46
Not identifying acquaintance rape as rape Not identifying acquaintance rape as rape
Fear of not being believed Fear of not being believed
Fear of being blamed for the assault Fear of being blamed for the assault
Unable to tell the whole story to police Unable to tell the whole story to police
Fear of being blamed due to use of alcohol or drugs Fear of being blamed due to use of alcohol or drugs
Lack of support Lack of support
Fear of how the case may be handled by the court system Fear of how the case may be handled by the court system
Fear of police Fear of police
Lack of understanding or knowledge of the court system Lack of understanding or knowledge of the court system
Wanting to put it all behind them Wanting to put it all behind them
Emotional attachment to the offender. Not wanting to get the offender in Emotional attachment to the offender. Not wanting to get the offender in
trouble trouble
In incest cases, the victim may be concerned about the family disruption. In incest cases, the victim may be concerned about the family disruption.
Victims relate that encouragement from a friend is often the impetus for reporting Victims relate that encouragement from a friend is often the impetus for reporting
the assault to police. Georgetown Law Center, in its report, Myths and Facts about the assault to police. Georgetown Law Center, in its report, Myths and Facts about
Sexual Violence, stated: Sexual Violence, stated:
43 Justice Todd was a Judge on the Superior Court of Pennsylvania at the time she wrote this article. 43 Justice Todd was a Judge on the Superior Court of Pennsylvania at the time she wrote this article.
45 Davin, P.A., Hilsop, J. C., & Dunbar, T. (1999), Female Sexual Abusers. Brandon, Vt.: Safer Society Press. 45 Davin, P.A., Hilsop, J. C., & Dunbar, T. (1999), Female Sexual Abusers. Brandon, Vt.: Safer Society Press.
46 U.S. Department of Justice. (1997), Successfully Investigating Acquaintance Sexual Assault: A National Training Manual for Law 46 U.S. Department of Justice. (1997), Successfully Investigating Acquaintance Sexual Assault: A National Training Manual for Law
Enforcement. Enforcement.
There are many reasons why a sexual assault victim may There are many reasons why a sexual assault victim may
not report the assault to the police. It is not easy to talk about being not report the assault to the police. It is not easy to talk about being
sexually assaulted. The experience of re-telling what happened sexually assaulted. The experience of re-telling what happened
may cause the person to relive the trauma. Other reasons for not may cause the person to relive the trauma. Other reasons for not
immediately reporting the assault or not reporting it at all include immediately reporting the assault or not reporting it at all include
fear of retaliation by the offender, fear of not being believed, fear of fear of retaliation by the offender, fear of not being believed, fear of
being blamed for the assault, fear of being revictimized if the case being blamed for the assault, fear of being revictimized if the case
goes through the criminal justice system, belief that the offender goes through the criminal justice system, belief that the offender
will not be held accountable, wanting to forget the assault ever will not be held accountable, wanting to forget the assault ever
happened, not recognizing that what happened was sexual assault, happened, not recognizing that what happened was sexual assault,
shame, and/or shock. In fact, reporting a sexual assault incident to shame, and/or shock. In fact, reporting a sexual assault incident to
the police is the exception and not the norm. From 1993 to 1999, the police is the exception and not the norm. From 1993 to 1999,
about 70% of rape and sexual assault crimes were not reported to about 70% of rape and sexual assault crimes were not reported to
the police. Because a person did not immediately report an assault the police. Because a person did not immediately report an assault
or chooses not to report it at all does not mean that the assault did or chooses not to report it at all does not mean that the assault did
not happen.47 not happen.47
1.4 THE IMPACT OF RAPE AND SEXUAL ASSAULT ON THE VICTIM 1.4 THE IMPACT OF RAPE AND SEXUAL ASSAULT ON THE VICTIM
Whether a person is assaulted by a stranger, an acquaintance, or someone they Whether a person is assaulted by a stranger, an acquaintance, or someone they
know and trust, their life is irrevocably changed. A victim of burglary, for example, know and trust, their life is irrevocably changed. A victim of burglary, for example,
may report losing a television or computer. A victim of rape or sexual assault will often may report losing a television or computer. A victim of rape or sexual assault will often
describe a loss of their soul. describe a loss of their soul.
The community at large seems to consider stranger sexual assault far more The community at large seems to consider stranger sexual assault far more
damaging to victims than sexual assault by an acquaintance, friend, or spouse. In reality, damaging to victims than sexual assault by an acquaintance, friend, or spouse. In reality,
the adverse may be true. While every reaction is different, victims report that that sexual the adverse may be true. While every reaction is different, victims report that that sexual
violence impacts them regardless of the relationship or perceived relationship to the violence impacts them regardless of the relationship or perceived relationship to the
perpetrator.48 perpetrator.48
A. PHYSICAL INJURY FROM RAPE AND SEXUAL ASSAULT IN FEMALE ADULTS A. PHYSICAL INJURY FROM RAPE AND SEXUAL ASSAULT IN FEMALE ADULTS
AND ADOLESCENTS AND ADOLESCENTS
1. Gross Bodily Injury in Female Adults and Adolescents 1. Gross Bodily Injury in Female Adults and Adolescents
According to the U.S. Department of Justice report, Prevalence, According to the U.S. Department of Justice report, Prevalence,
Incidence, and Consequences of Violence Against Women, 32 percent of women Incidence, and Consequences of Violence Against Women, 32 percent of women
reported physical injuries resulting from rape.49 Figure A illustrates the type of reported physical injuries resulting from rape.49 Figure A illustrates the type of
injuries most frequently reported by sexual assault victims (this graph includes injuries most frequently reported by sexual assault victims (this graph includes
injuries of male and female victims combined).50 As noted, bites, welts, and injuries of male and female victims combined).50 As noted, bites, welts, and
bruises were the most common physical injuries sustained by victims. bruises were the most common physical injuries sustained by victims.
47 Retrieved on March 28, 2014 from http://www.law.georgetown.edu. 47 Retrieved on March 28, 2014 from http://www.law.georgetown.edu.
48 U.S. Department of Justice. (2000), Full report of the prevalence, incidence, and consequences of violence against women (NCJ 48 U.S. Department of Justice. (2000), Full report of the prevalence, incidence, and consequences of violence against women (NCJ
Publications No. 183781, p. 49), retrieved March 28, 2014, from http://www.ncjrs.gov/pdffiles1/nij/183781.pdf. Publications No. 183781, p. 49), retrieved March 28, 2014, from http://www.ncjrs.gov/pdffiles1/nij/183781.pdf.
49 Id. 49 Id.
50 Id. 50 Id.
2. Genital Injury in Female Adults and Adolescents 2. Genital Injury in Female Adults and Adolescents
In The Color Atlas of Sexual Assault (1997), authors Girardin, Faugno, In The Color Atlas of Sexual Assault (1997), authors Girardin, Faugno,
Seneski, Slaughter, and Whelan cite multiple studies that conclude the absences Seneski, Slaughter, and Whelan cite multiple studies that conclude the absences
of genital injury does not provide proof that a rape did not occur.51 of genital injury does not provide proof that a rape did not occur.51
Figure A: Percentage of Injured Adult Rape and Physical Assault Victims Figure A: Percentage of Injured Adult Rape and Physical Assault Victims
There are several factors that may impact whether or not genital injury is There are several factors that may impact whether or not genital injury is
observed after a sexual assault. The most common reasons identified by medical observed after a sexual assault. The most common reasons identified by medical
personnel for lack of injury include: the lack of vaginal contact by the perpetrator, personnel for lack of injury include: the lack of vaginal contact by the perpetrator,
delayed reporting of the assault, a lack of magnification technology, inexperience or delayed reporting of the assault, a lack of magnification technology, inexperience or
insufficient training of the examiner, and finally, the perpetrator is non-aggressive insufficient training of the examiner, and finally, the perpetrator is non-aggressive
and/or the victim is non-resistive.52 and/or the victim is non-resistive.52
Each of the reasons for lack of genital injury will be discussed below. Each of the reasons for lack of genital injury will be discussed below.
In the first instance, if there is no contact with the vagina, it would follow that In the first instance, if there is no contact with the vagina, it would follow that
there would be no genital injury. there would be no genital injury.
51 Girardin, B.W., Faugno, D.K, Seneski, P.C., Slaughter, L., & Whelan, M. (1997). Color atlas of sexual assault (pp. 22-37), St. Louis, 51 Girardin, B.W., Faugno, D.K, Seneski, P.C., Slaughter, L., & Whelan, M. (1997). Color atlas of sexual assault (pp. 22-37), St. Louis,
Missouri: Mosby-Year Book, Inc. Missouri: Mosby-Year Book, Inc.
52 Id. 52 Id.
With delayed reporting, an examination delayed to 14 days post assault will With delayed reporting, an examination delayed to 14 days post assault will
detect no acute findings.53 detect no acute findings.53
Not using diagnostic equipment in the examination can decrease the likelihood Not using diagnostic equipment in the examination can decrease the likelihood
of diagnosing injury. of diagnosing injury.
A lack of Colposcopy magnification can drop the probability of detecting genital A lack of Colposcopy magnification can drop the probability of detecting genital
injury from 87 percent when performed by a trained examiner, to between 10 injury from 87 percent when performed by a trained examiner, to between 10
percent and 30 percent by gross visualization alone.54 Colpsocopy is one of three percent and 30 percent by gross visualization alone.54 Colpsocopy is one of three
methods currently available to conduct rape exams. The other two are direct methods currently available to conduct rape exams. The other two are direct
visualization and staining.55 Figure B lists and describes each technique and visualization and staining.55 Figure B lists and describes each technique and
provides an overview of their use in sexual assault examinations.56 provides an overview of their use in sexual assault examinations.56
Lack of training or expertise is another impediment to diagnosing injury. Lack of training or expertise is another impediment to diagnosing injury.
The use of minimal force by the perpetrator may not result in any discernable The use of minimal force by the perpetrator may not result in any discernable
injury. injury.
If the victim is non-resistive, he or she may not sustain a physical injury.57 If the victim is non-resistive, he or she may not sustain a physical injury.57
Figure B: Methods to Determine Genital Injury From Sexual Assault Figure B: Methods to Determine Genital Injury From Sexual Assault
Findings on Findings on
Technique Description Technique Description
Extent of Injury Extent of Injury
Standard gynecologic and forensic Rates of injury found by Standard gynecologic and forensic Rates of injury found by
Direct Visual Direct Visual
exam unaided by magnification or experienced examiners showed exam unaided by magnification or experienced examiners showed
inspection inspection
staining between 27%-33%. staining between 27%-33%.
Staining Techniques: Staining Techniques:
Media highlight areas of abraded Media highlight areas of abraded
Gentian violet, Investigators using staining Gentian violet, Investigators using staining
skin and microlacerations. skin and microlacerations.
Lugols solution, techniques identified injury in Lugols solution, techniques identified injury in
Staining techniques make injury Staining techniques make injury
toluidine blue, 40%-58% of sexual assaults. toluidine blue, 40%-58% of sexual assaults.
more visible to the naked eye. more visible to the naked eye.
fluorscein fluorscein
Used to illuminate, magnify, and Used to illuminate, magnify, and
Studies consistently show a Studies consistently show a
photograph external and internal photograph external and internal
higher rate of injury diagnosis higher rate of injury diagnosis
gynecologic structures. Repeated gynecologic structures. Repeated
Colposcopy with Colposcopy than with Colposcopy with Colposcopy than with
exams not necessary because exams not necessary because
direct visualization or staining direct visualization or staining
photographs or digital images can photographs or digital images can
alone. alone.
be obtained. be obtained.
To correctly perform a forensic rape exam, physicians and nurses require To correctly perform a forensic rape exam, physicians and nurses require
specialized training over and above what is received in their basic education specialized training over and above what is received in their basic education
programs.58 The need for individuals with this specialized skill resulted in programs.58 The need for individuals with this specialized skill resulted in
53 Id. 53 Id.
54 Id. 54 Id.
55 Sommers, M.S., Fisher, B.S., & Karjane, H.M. (2005). Using colposcopy in the rape exam: heath care, forensic, and criminal justice 55 Sommers, M.S., Fisher, B.S., & Karjane, H.M. (2005). Using colposcopy in the rape exam: heath care, forensic, and criminal justice
issues. Journal of Forensic Nursing, 1(1), 30-34. issues. Journal of Forensic Nursing, 1(1), 30-34.
56 Id. 56 Id.
57 Girardin, B.W., Faugno, D.K, Seneski, P.C., Slaughter, L., & Whelan, M. (1997). Color atlas of sexual assault (pp. 23-24) St. Louis, 57 Girardin, B.W., Faugno, D.K, Seneski, P.C., Slaughter, L., & Whelan, M. (1997). Color atlas of sexual assault (pp. 23-24) St. Louis,
Missouri: Mosby-Year Book, Inc. Missouri: Mosby-Year Book, Inc.
58 Office on Violence Against Women, Department of Justice, A national protocol for sexual assault medical forensic exams (2004) (U.S. 58 Office on Violence Against Women, Department of Justice, A national protocol for sexual assault medical forensic exams (2004) (U.S.
DOJ Publication No. NCJ 206554). DOJ Publication No. NCJ 206554).
the development of national Sexual Assault Nurse Examiner (SANE) training the development of national Sexual Assault Nurse Examiner (SANE) training
programs.59 programs.59
Basic training programs for SANE nurses consist of at least 40 hours Basic training programs for SANE nurses consist of at least 40 hours
of classroom instruction. Topics can include the definition of the SANE role, of classroom instruction. Topics can include the definition of the SANE role,
collection of evidence, testing and treatment of STDs, evaluation of other care collection of evidence, testing and treatment of STDs, evaluation of other care
needed, victim responses and crisis intervention, assessment of injuries, needed, victim responses and crisis intervention, assessment of injuries,
documentation, courtroom testimony, collaborating with community agencies, documentation, courtroom testimony, collaborating with community agencies,
competent completion of an exam, and forensic photography.60 Nurses are usually competent completion of an exam, and forensic photography.60 Nurses are usually
required to complete a certain number of clinical hours as well. required to complete a certain number of clinical hours as well.
According to Rebecca Campbell, Associate Professor of Community According to Rebecca Campbell, Associate Professor of Community
Psychology and Program Evaluation at Michigan State University, The clinical Psychology and Program Evaluation at Michigan State University, The clinical
case study literature suggests that SANE nurses are not only competent in forensic case study literature suggests that SANE nurses are not only competent in forensic
evidence collections, but they are actually better at it because of their extensive evidence collections, but they are actually better at it because of their extensive
training and experience.61 Campbell notes that research in this area consistently training and experience.61 Campbell notes that research in this area consistently
supports the use of SANE nurses in cases of sexual assault.62 supports the use of SANE nurses in cases of sexual assault.62
B. PSYCHOLOGICAL EFFECTS FROM SEXUAL ASSAULT CRIMES ON VICTIMS B. PSYCHOLOGICAL EFFECTS FROM SEXUAL ASSAULT CRIMES ON VICTIMS
Although a rape victim may not sustain physical injury, they may experience Although a rape victim may not sustain physical injury, they may experience
long-term psychological, emotional, and physical consequences of sexual assault. long-term psychological, emotional, and physical consequences of sexual assault.
The psychological effects of rape on a victim may range from minimal to severe The psychological effects of rape on a victim may range from minimal to severe
and from short to long-lasting. Hanson reports (1996) that one-quarter of women who and from short to long-lasting. Hanson reports (1996) that one-quarter of women who
are victims of sexual assault continue to have problems for several years after the rape.63 are victims of sexual assault continue to have problems for several years after the rape.63
Hazelwood and Burgess also indicate that rape and sexual assault are more likely to lead Hazelwood and Burgess also indicate that rape and sexual assault are more likely to lead
to post-traumatic stress disorder, a DSM-IV diagnosis, than any other traumatic event to post-traumatic stress disorder, a DSM-IV diagnosis, than any other traumatic event
affecting civilians.64 affecting civilians.64
1. Common Psychological Reactions To Sexual Violence 1. Common Psychological Reactions To Sexual Violence
Psychological reactions to rape and sexual assault mirror the reactions of Psychological reactions to rape and sexual assault mirror the reactions of
victims to other types of trauma such as war and natural disasters.65 victims to other types of trauma such as war and natural disasters.65
According to Timothy O. Woods, J.D., M.A., Director of Research and According to Timothy O. Woods, J.D., M.A., Director of Research and
Development at NSA and a frequent contributor to the Office for Victims of Crime Development at NSA and a frequent contributor to the Office for Victims of Crime
(OVC): (OVC):
59 For additional discussion on SANE nurses, see Chapter 8, Section 8.3(B)(2), Sexual Assault Nurse Examiners. 59 For additional discussion on SANE nurses, see Chapter 8, Section 8.3(B)(2), Sexual Assault Nurse Examiners.
60 Ledray, SANE Development and Operation Guide, p. 50. 60 Ledray, SANE Development and Operation Guide, p. 50.
61 VAWnet Applied Research Forum, 2004, The effectiveness of sexual assault nurse examiner programs. Retrieved February 6, 2006 from: 61 VAWnet Applied Research Forum, 2004, The effectiveness of sexual assault nurse examiner programs. Retrieved February 6, 2006 from:
http://www.vawnet.org/SexualViolence/Research/VAWnetDocuments/AR_Sane.php. http://www.vawnet.org/SexualViolence/Research/VAWnetDocuments/AR_Sane.php.
62 Id. 62 Id.
63 Crowell, N.A., & Burgess, A.W. (Eds.), 1996, Understanding violence against women, Washington D.C., National Academy Press. 63 Crowell, N.A., & Burgess, A.W. (Eds.), 1996, Understanding violence against women, Washington D.C., National Academy Press.
64 Hazelwood, R.R. & Burgess, A.W. (Eds.), 1995, Practical rape investigation. Boca Raton, Fla., CRC Press. 64 Hazelwood, R.R. & Burgess, A.W. (Eds.), 1995, Practical rape investigation. Boca Raton, Fla., CRC Press.
65 Id. 65 Id.
Sexual assault is one of the most traumatic types of criminal Sexual assault is one of the most traumatic types of criminal
victimization. Whereas most crime victims find it difficult to victimization. Whereas most crime victims find it difficult to
discuss their victimization, sexual assault victims find it especially discuss their victimization, sexual assault victims find it especially
painful. One obvious reason for this is the difficulty that many painful. One obvious reason for this is the difficulty that many
people have in talking about sex. A more important reason, people have in talking about sex. A more important reason,
however, is that many victims of sexual assault are intensely however, is that many victims of sexual assault are intensely
traumatized not only by the humiliation of their physical violation traumatized not only by the humiliation of their physical violation
but by the fear of being severely injured or killed.66 but by the fear of being severely injured or killed.66
Kilpatrick notes (from 1996) that the fear of being injured or killed is Kilpatrick notes (from 1996) that the fear of being injured or killed is
equally common among women who are raped by husbands or acquaintances as equally common among women who are raped by husbands or acquaintances as
among women who are raped by total strangers.67 among women who are raped by total strangers.67
Victims of sexual assault may suffer anxiety, depression, and anger as Victims of sexual assault may suffer anxiety, depression, and anger as
the result of an assault. Additionally, victims can suffer from social and sexual the result of an assault. Additionally, victims can suffer from social and sexual
problems and may also exhibit dissociative reactions.68 Dissociative reactions problems and may also exhibit dissociative reactions.68 Dissociative reactions
are defined as: are defined as:
[T]he separation of ideas, feelings, information, identity, or [T]he separation of ideas, feelings, information, identity, or
memories that would normally go together. Dissociation exists memories that would normally go together. Dissociation exists
on a continuum: At one end are mild dissociative experiences on a continuum: At one end are mild dissociative experiences
common to most people (such as daydreaming or highway common to most people (such as daydreaming or highway
hypnosis) and at the other extreme is severe chronic dissociation, hypnosis) and at the other extreme is severe chronic dissociation,
such as DID (MPD) and other dissociative disorders. Dissociation such as DID (MPD) and other dissociative disorders. Dissociation
appears to be a normal process used to handle trauma that over appears to be a normal process used to handle trauma that over
time becomes reinforced and develops into maladaptive coping.69 time becomes reinforced and develops into maladaptive coping.69
Three terms commonly used when discussing the psychological impact Three terms commonly used when discussing the psychological impact
of sexual violence are Rape Trauma Syndrome, Acute Stress Disorder, and Post of sexual violence are Rape Trauma Syndrome, Acute Stress Disorder, and Post
Traumatic Stress Disorder (PTSD). Traumatic Stress Disorder (PTSD).
While understanding Rape Trauma Syndrome may be helpful in identifying While understanding Rape Trauma Syndrome may be helpful in identifying
common reactions to rape, the use of this term in court can be problematic as it is common reactions to rape, the use of this term in court can be problematic as it is
not a diagnosis recognized as a DSM-IV diagnosable disease.70 not a diagnosis recognized as a DSM-IV diagnosable disease.70
2. Rape Trauma Syndrome 2. Rape Trauma Syndrome
Rape Trauma Syndrome was initially identified by Ann Burgess and Rape Trauma Syndrome was initially identified by Ann Burgess and
Lynda Lytle Holmstrom in 1974.71 Ann Burgess is considered an expert on the Lynda Lytle Holmstrom in 1974.71 Ann Burgess is considered an expert on the
66 Woods, T.O., 2000, First response to victims of crime: victims of sexual assault, (OVC Publication No. 176971) Washington D.C., U.S. 66 Woods, T.O., 2000, First response to victims of crime: victims of sexual assault, (OVC Publication No. 176971) Washington D.C., U.S.
Department of Justice. Department of Justice.
67 Crowell, N.A., & Burgess, A.W. (Eds.), 1996, Understanding violence against women, Washington D.C., National Academy Press. 67 Crowell, N.A., & Burgess, A.W. (Eds.), 1996, Understanding violence against women, Washington D.C., National Academy Press.
68 Foa, E., & Rothbaum, B.O. (1998). Treating the trauma of rape: cognitive-behavior therapy for PTSD. New York, NY: Guilford 68 Foa, E., & Rothbaum, B.O. (1998). Treating the trauma of rape: cognitive-behavior therapy for PTSD. New York, NY: Guilford
Publications. Publications.
69 Diagnostic and Statistical Manual of Mental Disorders American Psychiatric Association, 1994, (4th ed.) Washington, D.C. 69 Diagnostic and Statistical Manual of Mental Disorders American Psychiatric Association, 1994, (4th ed.) Washington, D.C.
70 Diagnostic and statistical manual of mental disorders, American Psychiatric Association, 2000, (4th ed.) Washington, D.C.; See also, 70 Diagnostic and statistical manual of mental disorders, American Psychiatric Association, 2000, (4th ed.) Washington, D.C.; See also,
The Playboy Defense in Philadelphia: How Pennsylvania Continues to Thwart Fair and Effective Sexual Assault Prosecutions By The Playboy Defense in Philadelphia: How Pennsylvania Continues to Thwart Fair and Effective Sexual Assault Prosecutions By
Refusing to Admit Expert Testimony About Rape Trauma Syndrome, 6 Rutgers J.L.&Pub.Poly 891 (Spring 2009). Refusing to Admit Expert Testimony About Rape Trauma Syndrome, 6 Rutgers J.L.&Pub.Poly 891 (Spring 2009).
71 Burgess, A.W., & Holmstrom, L.L., Rape trauma syndrome, 1974, American Journal of Psychiatry. 71 Burgess, A.W., & Holmstrom, L.L., Rape trauma syndrome, 1974, American Journal of Psychiatry.
psychological impact of sexual violence and has authored nine textbooks and psychological impact of sexual violence and has authored nine textbooks and
written extensively on assessment and treatment of sexual assault victims. written extensively on assessment and treatment of sexual assault victims.
Burgess and Holstrom first wrote about Rape Trauma Syndrome in 1974 Burgess and Holstrom first wrote about Rape Trauma Syndrome in 1974
after observing similar physical and psychological responses in 92 adult women after observing similar physical and psychological responses in 92 adult women
who presented to an emergency department after being raped.72 Their research who presented to an emergency department after being raped.72 Their research
was groundbreaking because it dispelled the myth held by law enforcement, was groundbreaking because it dispelled the myth held by law enforcement,
medical personnel, and society at large that all rape victims would be hysterical medical personnel, and society at large that all rape victims would be hysterical
following their assault. What they found was that although every victim responded following their assault. What they found was that although every victim responded
differently, there were some consistent physical, psychological, and emotional differently, there were some consistent physical, psychological, and emotional
reactions among victims. reactions among victims.
According to Burgess and Holmstrom, Rape trauma syndrome is the acute According to Burgess and Holmstrom, Rape trauma syndrome is the acute
phase and long-term reorganization process that occurs as the result of forcible phase and long-term reorganization process that occurs as the result of forcible
rape or attempted forcible rape.73 It usually involves an acute reactionary phase rape or attempted forcible rape.73 It usually involves an acute reactionary phase
and a secondary, coping or re-grouping phase, and attempts to explain why and a secondary, coping or re-grouping phase, and attempts to explain why
victims respond to the trauma of the sexual assault with seemingly unexplainable victims respond to the trauma of the sexual assault with seemingly unexplainable
behavior.74 behavior.74
According to Burgess and Holmstron, in the immediate aftermath of According to Burgess and Holmstron, in the immediate aftermath of
the rape, the victim may demonstrate shock and disbelief. Within a few hours, the rape, the victim may demonstrate shock and disbelief. Within a few hours,
most exhibited two reactionary styles: either becoming openly emotional or most exhibited two reactionary styles: either becoming openly emotional or
controlled and withdrawn. The openly emotional victim expressed fear, anger, controlled and withdrawn. The openly emotional victim expressed fear, anger,
and anxiety, which manifested in crying and smiling. Those who were controlled and anxiety, which manifested in crying and smiling. Those who were controlled
appeared calm and subdued and exhibited a flat affect.75 appeared calm and subdued and exhibited a flat affect.75
During the first few weeks after the rape, victims report both physical During the first few weeks after the rape, victims report both physical
and emotional reactions. The physical reactions include: skeletal muscle tension, and emotional reactions. The physical reactions include: skeletal muscle tension,
overall physical soreness, nausea, change in appetite, and in some cases, vaginal overall physical soreness, nausea, change in appetite, and in some cases, vaginal
itching and infection. Emotionally, victims experienced fear, humiliation, anger, itching and infection. Emotionally, victims experienced fear, humiliation, anger,
and self-blame. Some reported violent dreams, a constant fear of being attacked and self-blame. Some reported violent dreams, a constant fear of being attacked
again, fear of crowds, and what is referred to as intrusive imagery. In this case, again, fear of crowds, and what is referred to as intrusive imagery. In this case,
victims reported seeing the perpetrator everywhere. Burgess and Holmstrom victims reported seeing the perpetrator everywhere. Burgess and Holmstrom
noted that during the second phase, victims attempt to restore order to their life noted that during the second phase, victims attempt to restore order to their life
and regain a sense of control.76 and regain a sense of control.76
While the sample in this initial study was somewhat small, the symptoms While the sample in this initial study was somewhat small, the symptoms
associated with Rape Trauma Syndrome have been confirmed in other studies, as associated with Rape Trauma Syndrome have been confirmed in other studies, as
well as anecdotally, since 1974. well as anecdotally, since 1974.
However, the use of expert testimony to explain the effect of Rape Trauma However, the use of expert testimony to explain the effect of Rape Trauma
Syndrome on a particular victim is prohibited in Pennsylvania. In Commonwealth Syndrome on a particular victim is prohibited in Pennsylvania. In Commonwealth
72 Id. 72 Id.
73 Id. 73 Id.
74 6 Rutgers J.L.&Pub.Poly 891 (Spring 2009). 74 6 Rutgers J.L.&Pub.Poly 891 (Spring 2009).
76 Id. 76 Id.
v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), the Pennsylvania Supreme Court v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), the Pennsylvania Supreme Court
held that it was reversible error by the trial court to permit the use of expert held that it was reversible error by the trial court to permit the use of expert
testimony on Rape Trauma Syndrome to explain why the victim had repeatedly testimony on Rape Trauma Syndrome to explain why the victim had repeatedly
failed to identify the defendant immediately following the assault but was able failed to identify the defendant immediately following the assault but was able
to identify him more than four years later. The Supreme Court reasoned that the to identify him more than four years later. The Supreme Court reasoned that the
testimony was erroneously used to enhance the credibility of the victim, which testimony was erroneously used to enhance the credibility of the victim, which
was within the sole responsibility of the jury. 77 was within the sole responsibility of the jury. 77
3. Acute Stress Disorder 3. Acute Stress Disorder

Acute Stress Disorder (ASD) is a fairly new category in the Diagnostic and Acute Stress Disorder (ASD) is a fairly new category in the Diagnostic and
Statistical Manual of Mental Disorders (DSM) and identifies reactions to trauma Statistical Manual of Mental Disorders (DSM) and identifies reactions to trauma
that do not yet meet the criteria for PTSD.78 Foa and Rothbaum in Treating the that do not yet meet the criteria for PTSD.78 Foa and Rothbaum in Treating the
Trauma of Rape, describe the role of Acute Stress Disorder within the context of Trauma of Rape, describe the role of Acute Stress Disorder within the context of
trauma and PTSD, The primary difference between the two disorders is duration trauma and PTSD, The primary difference between the two disorders is duration
of symptoms ASD occurs immediately following a stressor, but if symptoms persist of symptoms ASD occurs immediately following a stressor, but if symptoms persist
beyond one month, a diagnosis of PTSD should be given.79 beyond one month, a diagnosis of PTSD should be given.79
The DSM-IV defines the diagnostic criteria for Acute Stress Disorder as The DSM-IV defines the diagnostic criteria for Acute Stress Disorder as
follows:80 follows:80
(1) The person has been exposed to a traumatic event in which both of the (1) The person has been exposed to a traumatic event in which both of the
following were present: following were present:
(a) The person experienced, witnessed, or was confronted with an (a) The person experienced, witnessed, or was confronted with an
event or events that involved actual or threatened death or serious event or events that involved actual or threatened death or serious
injury, or a threat to the physical integrity of self or others injury, or a threat to the physical integrity of self or others
(b) The persons response involved intense fear, helplessness, or (b) The persons response involved intense fear, helplessness, or
horror horror
(2) Either while experiencing or after experiencing the distressing event, the (2) Either while experiencing or after experiencing the distressing event, the
individual has three (or more) of the following dissociative symptoms: individual has three (or more) of the following dissociative symptoms:
(a) A subjective sense of numbing, detachment, or absence of emotional (a) A subjective sense of numbing, detachment, or absence of emotional
responsiveness responsiveness
(b) A reduction in awareness of his or her surroundings (e.g., being in (b) A reduction in awareness of his or her surroundings (e.g., being in
a daze) a daze)
(c) Derealization (c) Derealization
(d) Depersonalization (d) Depersonalization
(e) Dissociative amnesia (i.e., inability to recall an important aspect of (e) Dissociative amnesia (i.e., inability to recall an important aspect of
the trauma) the trauma)
77 See Chapter 8, Section 8.2 Conduct or Behavior of victims in sexual assault cases. 77 See Chapter 8, Section 8.2 Conduct or Behavior of victims in sexual assault cases.
78 Diagnostic and statistical manual of mental disorders, American Psychiatric Association, 2000, (4th ed.), Washington, D.C. 78 Diagnostic and statistical manual of mental disorders, American Psychiatric Association, 2000, (4th ed.), Washington, D.C.
79 Foa, E., & Rothbaum, B.O., 1998, Treating the trauma of rape: cognitive-behavior therapy for PTSD, New York, NY: Guilford 79 Foa, E., & Rothbaum, B.O., 1998, Treating the trauma of rape: cognitive-behavior therapy for PTSD, New York, NY: Guilford
80 American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed.). Washington, DC: Author. 80 American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed.). Washington, DC: Author.
(3) The traumatic event is persistently re-experienced in at least one of the (3) The traumatic event is persistently re-experienced in at least one of the
following ways: recurrent images, thoughts, dreams, illusions, flashback following ways: recurrent images, thoughts, dreams, illusions, flashback
episodes, or a sense of reliving the experience; or distress on exposure to episodes, or a sense of reliving the experience; or distress on exposure to
reminders of the traumatic event. reminders of the traumatic event.
(4) Marked avoidance of stimuli that arouse recollections of the trauma (e.g., (4) Marked avoidance of stimuli that arouse recollections of the trauma (e.g.,
thoughts, feelings, conversations, activities, places, people). thoughts, feelings, conversations, activities, places, people).
(5) Marked symptoms of anxiety or increased arousal (e.g., difficulty sleeping, (5) Marked symptoms of anxiety or increased arousal (e.g., difficulty sleeping,
irritability, poor concentration, hyper-vigilance, exaggerated startle irritability, poor concentration, hyper-vigilance, exaggerated startle
response, motor restlessness). response, motor restlessness).
(6) The disturbance causes clinically significant distress or impairment in (6) The disturbance causes clinically significant distress or impairment in
social, occupational, or other important areas of functioning or impairs social, occupational, or other important areas of functioning or impairs
the individuals ability to pursue some necessary task, such as obtaining the individuals ability to pursue some necessary task, such as obtaining
necessary assistance or mobilizing personal resources by telling family necessary assistance or mobilizing personal resources by telling family
members about the traumatic experience. members about the traumatic experience.
(7) The disturbance lasts for a minimum of 2 days and a maximum of 4 weeks (7) The disturbance lasts for a minimum of 2 days and a maximum of 4 weeks
and occurs within 4 weeks after the traumatic event. and occurs within 4 weeks after the traumatic event.
(8) The disturbance is not due to the direct physiological effects of substance (8) The disturbance is not due to the direct physiological effects of substance
(e.g., a drug or abuse, a medication) or a general medical condition (e.g., a drug or abuse, a medication) or a general medical condition
accounted for by a Brief Psychotic Disorder, and is not merely an accounted for by a Brief Psychotic Disorder, and is not merely an
exacerbation of a preexisting Axis I or Axis II disorder. exacerbation of a preexisting Axis I or Axis II disorder.
4. Post Traumatic Stress Disorder 4. Post Traumatic Stress Disorder
Post Traumatic Stress Disorder (PTSD) initially described reaction Post Traumatic Stress Disorder (PTSD) initially described reaction
patterns in survivors of natural disasters and combatants in war.81 Since its patterns in survivors of natural disasters and combatants in war.81 Since its
identification, it has been diagnosed in victims of criminal attacks, accidents, identification, it has been diagnosed in victims of criminal attacks, accidents,
and other traumatic events. According to Crowell and Burgess, Rape and sexual and other traumatic events. According to Crowell and Burgess, Rape and sexual
assault are more likely to lead to PTSD than other traumatic events affecting assault are more likely to lead to PTSD than other traumatic events affecting
civilians, including robbery, the tragic death of close friends or family, and natural civilians, including robbery, the tragic death of close friends or family, and natural
disaster.82 disaster.82
In Paliometros v. Lovola, 932 A.2d 128 (Pa.Super. 2007), a guest who In Paliometros v. Lovola, 932 A.2d 128 (Pa.Super. 2007), a guest who
was sexually assaulted at a fraternity party sued for personal injuries, and also was sexually assaulted at a fraternity party sued for personal injuries, and also
emotional injuries based upon a diagnosis of post-traumatic stress disorder. emotional injuries based upon a diagnosis of post-traumatic stress disorder.
The Superior Court of Pennsylvania, per Judge Robert Daniels, affirmed the The Superior Court of Pennsylvania, per Judge Robert Daniels, affirmed the
damages award of $548,800 finding that the testimony from the victims licensed damages award of $548,800 finding that the testimony from the victims licensed
psychologist as well as her husband and father provided sufficient evidence to psychologist as well as her husband and father provided sufficient evidence to
81 Foa, E., & Rothbaum, B.O. (1998). Treating the trauma of rape: cognitive-behavior therapy for PTSD. New York, NY: Guilford 81 Foa, E., & Rothbaum, B.O. (1998). Treating the trauma of rape: cognitive-behavior therapy for PTSD. New York, NY: Guilford
sustain the jurys verdict. sustain the jurys verdict.
The DSM-IV defines the diagnostic criteria for PTSD as follows: The DSM-IV defines the diagnostic criteria for PTSD as follows:
1. The person has been exposed to a traumatic event in which both of the 1. The person has been exposed to a traumatic event in which both of the
following were present: following were present:
(a) The person experienced, witnessed, or was confronted with an (a) The person experienced, witnessed, or was confronted with an
event or events that involved actual or threatened death or serious event or events that involved actual or threatened death or serious
injury, or a threat to the physical integrity of self or others. injury, or a threat to the physical integrity of self or others.
(b) The persons response involved intense fear, helplessness, or horror. (b) The persons response involved intense fear, helplessness, or horror.
Note: in children, this may be expressed instead by disorganized or Note: in children, this may be expressed instead by disorganized or
agitated behavior. agitated behavior.
2. The traumatic event is persistently re-experienced in one (or more) of 2. The traumatic event is persistently re-experienced in one (or more) of
the following ways: the following ways:
(a) Recurrent and intrusive distressing recollections of the event, (a) Recurrent and intrusive distressing recollections of the event,
including images, thoughts or perceptions. Note: In young including images, thoughts or perceptions. Note: In young
children, repetitive play may occur in which themes or aspects of children, repetitive play may occur in which themes or aspects of
the trauma are expressed. the trauma are expressed.
(b) Recurrent distressing dreams of the event. Note: In children, there (b) Recurrent distressing dreams of the event. Note: In children, there
may be frightening dreams without recognizable content. may be frightening dreams without recognizable content.
(c) Acting or feeling as if the traumatic event were recurring (includes (c) Acting or feeling as if the traumatic event were recurring (includes
a sense of reliving the experience, illusions, hallucinations, and a sense of reliving the experience, illusions, hallucinations, and
dissociative flashback episodes, including those that occur upon dissociative flashback episodes, including those that occur upon
awakening or when intoxicated). Note: in young children, trauma- awakening or when intoxicated). Note: in young children, trauma-
specific reenactment may occur. specific reenactment may occur.
(d) Intense psychological distress at exposure to internal or external (d) Intense psychological distress at exposure to internal or external
cues that symbolize or resemble an aspect of the traumatic event. cues that symbolize or resemble an aspect of the traumatic event.
3. Persistent avoidance of stimuli associated with the trauma and numbing 3. Persistent avoidance of stimuli associated with the trauma and numbing
of general responsiveness (not present before the trauma), as indicated of general responsiveness (not present before the trauma), as indicated
by three (or more) of the following: by three (or more) of the following:
(a) Efforts to avoid thoughts, feelings, or conversations associated (a) Efforts to avoid thoughts, feelings, or conversations associated
with the trauma. with the trauma.
(b) Efforts to avoid activities, places, or people that arouse recollections (b) Efforts to avoid activities, places, or people that arouse recollections
of the trauma. of the trauma.
(c) Inability to recall an important aspect of the trauma. (c) Inability to recall an important aspect of the trauma.
(d) Markedly diminished interest or participation in significant (d) Markedly diminished interest or participation in significant
activities. activities.
(e) Feeling of detachment or estrangement from others. (e) Feeling of detachment or estrangement from others.
(f) Restricted range of affect (e.g., unable to have loving feelings.) (f) Restricted range of affect (e.g., unable to have loving feelings.)
(g) Sense of a foreshortened future (e.g., does not expect to have a (g) Sense of a foreshortened future (e.g., does not expect to have a
career, marriage, children, or a normal life span). career, marriage, children, or a normal life span).
4. Persistent symptoms of increased arousal (not present before trauma), 4. Persistent symptoms of increased arousal (not present before trauma),
as indicated by two (or more) of the following: as indicated by two (or more) of the following:
(a) Difficulty falling or staying asleep. (a) Difficulty falling or staying asleep.
(b) Irritability or outbursts of anger. (b) Irritability or outbursts of anger.
(c) Difficulty concentrating. (c) Difficulty concentrating.
(d) Hypervigilance. (d) Hypervigilance.
(e) Exaggerated startle response. (e) Exaggerated startle response.
5. Duration of the disturbance (symptoms in B, C and D) is more than one 5. Duration of the disturbance (symptoms in B, C and D) is more than one
month. month.
6. The disturbance causes clinically significant distress or impairment in 6. The disturbance causes clinically significant distress or impairment in
social, occupational, or other important areas of functioning. social, occupational, or other important areas of functioning.
C. RECOGNIZING THE TRAUMATIC EFFECTS OF COURT PROCEEDINGS C. RECOGNIZING THE TRAUMATIC EFFECTS OF COURT PROCEEDINGS
Victims consistently report that testifying in court can be as traumatic as the Victims consistently report that testifying in court can be as traumatic as the
original rape because they are forced to mentally relive the rape.83 The public setting, the original rape because they are forced to mentally relive the rape.83 The public setting, the
presence of the offender and the difficulty of cross-examination may be very stressful presence of the offender and the difficulty of cross-examination may be very stressful
and can return a victim to a state of crisis. The trauma may be even more intense when and can return a victim to a state of crisis. The trauma may be even more intense when
the defendant is pro se and has the ability to cross-examine the victim directly.84 the defendant is pro se and has the ability to cross-examine the victim directly.84
Sometimes a victim can be so traumatized by the court proceedings that they Sometimes a victim can be so traumatized by the court proceedings that they
respond and react in a manner that seems illogical to the observer. The person may respond and react in a manner that seems illogical to the observer. The person may
giggle or laugh because of embarrassment or nervousness. They may have a flat, giggle or laugh because of embarrassment or nervousness. They may have a flat,
unemotional affect as the result of depression or dissociating themselves from the unemotional affect as the result of depression or dissociating themselves from the
83 Executive Summary Of The Report On Racial And Gender Bias In The Justice System, 2003, Pennsylvania Supreme Court, Harrisburg, 83 Executive Summary Of The Report On Racial And Gender Bias In The Justice System, 2003, Pennsylvania Supreme Court, Harrisburg,
PA. PA.
84 Id. For additional discussion, see Chapter 7, Section 7.4(E), Cross-examination of Complainant by Pro Se Defendant. 84 Id. For additional discussion, see Chapter 7, Section 7.4(E), Cross-examination of Complainant by Pro Se Defendant.
difficulty of testimony. At times, the victim may appear meek and withdrawn or angry difficulty of testimony. At times, the victim may appear meek and withdrawn or angry
and combative. The unfortunate consequence of these responses is that the jury may and combative. The unfortunate consequence of these responses is that the jury may
question the victims credibility when, in actuality, it is simply the victims response to question the victims credibility when, in actuality, it is simply the victims response to
stress. stress.
1. Victim-Blaming and Its Impact on Offender Accountability 1. Victim-Blaming and Its Impact on Offender Accountability
One of a victims greatest concerns is being blamed for inviting or causing One of a victims greatest concerns is being blamed for inviting or causing
the sexual assault.85 It is a fear that prevents many from seeking medical help the sexual assault.85 It is a fear that prevents many from seeking medical help
or reporting their assault to law enforcement. Unfortunately, even victims of or reporting their assault to law enforcement. Unfortunately, even victims of
stranger violence may be subjected to victim-blaming attitudes. Why were you stranger violence may be subjected to victim-blaming attitudes. Why were you
walking alone? Why did you go out for cigarettes at 2:00 am? are common walking alone? Why did you go out for cigarettes at 2:00 am? are common
questions reported by victims. Parents, friends, and co-workers may blame the questions reported by victims. Parents, friends, and co-workers may blame the
victim through such statements as: Why were you drinking? Why did you go victim through such statements as: Why were you drinking? Why did you go
home with the guy? home with the guy?
Research consistently demonstrates that perpetrators capitalize Research consistently demonstrates that perpetrators capitalize
on victims vulnerabilities and inabilities to report or be believed. In fact, on victims vulnerabilities and inabilities to report or be believed. In fact,
according to David Lisak, Associate Professor of Psychology at the University of according to David Lisak, Associate Professor of Psychology at the University of
Massachusetts, the key to a perpetrators success is identifying an individuals Massachusetts, the key to a perpetrators success is identifying an individuals
vulnerability and exploiting that vulnerability.86 A perpetrator recognizes, for vulnerability and exploiting that vulnerability.86 A perpetrator recognizes, for
example, that an adolescent who is drinking is unlikely to report an assault out of example, that an adolescent who is drinking is unlikely to report an assault out of
fear of being busted for underage drinking. fear of being busted for underage drinking.
1.5 VICTIMS RIGHTS 1.5 VICTIMS RIGHTS
Victims of crime in Pennsylvania are granted a number of rights by Pennsylvanias Victims of crime in Pennsylvania are granted a number of rights by Pennsylvanias
Crime Victims Act.87 The rights extended to victims of crime in Chapter 2 are to be Crime Victims Act.87 The rights extended to victims of crime in Chapter 2 are to be
honored and protected by law enforcement agencies, prosecutors and judges in a manner honored and protected by law enforcement agencies, prosecutors and judges in a manner
no less vigorous than the protections afforded criminal defendants.88 According to the no less vigorous than the protections afforded criminal defendants.88 According to the
Act, victims of crime have the following rights: Act, victims of crime have the following rights:
Victims of crime have the following rights: Victims of crime have the following rights:
(1) To receive basic information concerning the services available for victims (1) To receive basic information concerning the services available for victims
of crime. of crime.
(2) To be notified of certain significant actions and proceedings within the (2) To be notified of certain significant actions and proceedings within the
criminal and juvenile justice systems pertaining to their case. This paragraph criminal and juvenile justice systems pertaining to their case. This paragraph
includes all of the following: includes all of the following:
85 Adult victims hesitate to report the crime due to feelings of shame or fear that no one will believe them, or because they blame 85 Adult victims hesitate to report the crime due to feelings of shame or fear that no one will believe them, or because they blame
themselves for what happened. HE SAID, SHE SAID, SHE SAID: WHY PENNSLYVANIA SHOULD ADOPT FEDERAL RULES themselves for what happened. HE SAID, SHE SAID, SHE SAID: WHY PENNSLYVANIA SHOULD ADOPT FEDERAL RULES
OF EVIDENCE, 52 Vill.L.Rev. 641, 648 (Jessica Khan 2007)(footnote omitted). OF EVIDENCE, 52 Vill.L.Rev. 641, 648 (Jessica Khan 2007)(footnote omitted).
86 Lisak, D. (2005, October). Predators: uncomfortable truths about campus rapists. Presented at the International Sexual Assault, Domestic 86 Lisak, D. (2005, October). Predators: uncomfortable truths about campus rapists. Presented at the International Sexual Assault, Domestic
Violence, and Stalking Conference, Baltimore, MD. Violence, and Stalking Conference, Baltimore, MD.
87 18 Pa.stat. 11.201 11.216. 87 18 Pa.stat. 11.201 11.216.
88 18 Pa.stat. 11.201. 88 18 Pa.stat. 11.201.
(i) Access to information regarding whether the juvenile was detained or (i) Access to information regarding whether the juvenile was detained or
released following arrest and whether a petition alleging delinquency has released following arrest and whether a petition alleging delinquency has
been filed. been filed.
(ii) Immediate notification of a juveniles preadjudication escape from (ii) Immediate notification of a juveniles preadjudication escape from
a detention center or shelter facility and of the juveniles subsequent a detention center or shelter facility and of the juveniles subsequent
apprehension. apprehension.
(iii) Access to information regarding the grant or denial of bail to an adult. (iii) Access to information regarding the grant or denial of bail to an adult.
(iv) Immediate notification of an adult offenders pretrial escape from a local (iv) Immediate notification of an adult offenders pretrial escape from a local
correctional facility and of the offenders subsequent apprehension. correctional facility and of the offenders subsequent apprehension.
(3) To be accompanied at all criminal and all juvenile proceedings in accordance (3) To be accompanied at all criminal and all juvenile proceedings in accordance
with 42 Pa.C.S. 6336 (relating to conduct of hearings) by a family member, with 42 Pa.C.S. 6336 (relating to conduct of hearings) by a family member,
a victim advocate or other person providing assistance or support. a victim advocate or other person providing assistance or support.
(4) In cases involving a personal injury crime or burglary, to submit prior (4) In cases involving a personal injury crime or burglary, to submit prior
comment to the prosecutors office or juvenile probation office, as appropriate comment to the prosecutors office or juvenile probation office, as appropriate
to the circumstances of the case, on the potential reduction or dropping of to the circumstances of the case, on the potential reduction or dropping of
any charge or changing of a plea in a criminal or delinquency proceeding, or, any charge or changing of a plea in a criminal or delinquency proceeding, or,
diversion of any case, including an informal adjustment or consent decree. diversion of any case, including an informal adjustment or consent decree.
(5) To have opportunity to offer prior comment on the sentencing of a (5) To have opportunity to offer prior comment on the sentencing of a
defendant or the disposition of a delinquent child, to include the submission of defendant or the disposition of a delinquent child, to include the submission of
a written and oral victim impact statement detailing the physical, psychological a written and oral victim impact statement detailing the physical, psychological
and economic effects of the crime on the victim and the victims family. The and economic effects of the crime on the victim and the victims family. The
written statement shall be included in any predisposition or presentence report written statement shall be included in any predisposition or presentence report
submitted to the court. Victim-impact statements shall be considered by a submitted to the court. Victim-impact statements shall be considered by a
court when determining the disposition of a juvenile or sentence of an adult. court when determining the disposition of a juvenile or sentence of an adult.
(5.1) To have notice and to provide prior comment on a judicial recommendation (5.1) To have notice and to provide prior comment on a judicial recommendation
that the defendant participate in a motivational boot camp pursuant to the act that the defendant participate in a motivational boot camp pursuant to the act
of December 19, 1990 (P.L. 1391, No. 215), known as the Motivational Boot of December 19, 1990 (P.L. 1391, No. 215), known as the Motivational Boot
Camp Act. Camp Act.
(5.2) Upon request of the victim of a personal injury crime, to have the (5.2) Upon request of the victim of a personal injury crime, to have the
opportunity to submit written comment or present oral testimony at a disposition opportunity to submit written comment or present oral testimony at a disposition
review hearing, which comment or testimony shall be considered by the court review hearing, which comment or testimony shall be considered by the court
when reviewing the disposition of the juvenile. when reviewing the disposition of the juvenile.
(6) To be restored, to the extent possible, to the precrime economic status (6) To be restored, to the extent possible, to the precrime economic status
through the provision of restitution, compensation and the expeditious return through the provision of restitution, compensation and the expeditious return
of property which is seized as evidence in the case when in the judgment of of property which is seized as evidence in the case when in the judgment of
the prosecutor the evidence is no longer needed for prosecution of the case. the prosecutor the evidence is no longer needed for prosecution of the case.
(7) In personal injury crimes where the adult is sentenced to a State correctional (7) In personal injury crimes where the adult is sentenced to a State correctional
facility, to be: facility, to be:
(i) given the opportunity to provide prior comment on and to receive State (i) given the opportunity to provide prior comment on and to receive State
postsentencing release decisions, including work release, furlough, parole, postsentencing release decisions, including work release, furlough, parole,
pardon or community treatment center placement; pardon or community treatment center placement;
(ii) provided immediate notice of an escape of the adult and of subsequent (ii) provided immediate notice of an escape of the adult and of subsequent
apprehension; and apprehension; and
(iii) given the opportunity to receive notice of and to provide prior comment (iii) given the opportunity to receive notice of and to provide prior comment
on a recommendation sought by the Department of Corrections that the on a recommendation sought by the Department of Corrections that the
offender participate in a motivational boot camp pursuant to the Motivational offender participate in a motivational boot camp pursuant to the Motivational
Boot Camp Act. Boot Camp Act.
(8) In personal injury crimes where the adult is sentenced to a local correctional (8) In personal injury crimes where the adult is sentenced to a local correctional
facility, to: facility, to:
(i) receive notice of the date of the release of the adult, including work (i) receive notice of the date of the release of the adult, including work
release, furlough, parole, release from a boot camp or community treatment release, furlough, parole, release from a boot camp or community treatment
center placement; and center placement; and
(ii) be provided with immediate notice of an escape of the adult and of (ii) be provided with immediate notice of an escape of the adult and of
subsequent apprehension. subsequent apprehension.
(8.1) If, upon the request of the victim of a personal injury crime committed (8.1) If, upon the request of the victim of a personal injury crime committed
by a juvenile, the juvenile is ordered to residential placement, a shelter facility by a juvenile, the juvenile is ordered to residential placement, a shelter facility
or a detention center, to: or a detention center, to:
(i) Receive prior notice of the date of the release of the juvenile, including (i) Receive prior notice of the date of the release of the juvenile, including
temporary leave or home pass. temporary leave or home pass.
(ii) Be provided with: (ii) Be provided with:
(A) immediate notice of an escape of the juvenile, including (A) immediate notice of an escape of the juvenile, including
failure to return from temporary leave or home pass; and failure to return from temporary leave or home pass; and
(B) immediate notice of reapprehension of the juvenile. (B) immediate notice of reapprehension of the juvenile.
(iii) Be provided with notice of transfer of a juvenile who has been adjudicated (iii) Be provided with notice of transfer of a juvenile who has been adjudicated
delinquent from a placement facility that is contrary to a previous court delinquent from a placement facility that is contrary to a previous court
order or placement plan approved at a disposition review hearing and to order or placement plan approved at a disposition review hearing and to
have the opportunity to express a written objection prior to the release or have the opportunity to express a written objection prior to the release or
transfer of the juvenile. transfer of the juvenile.
(9) If the adult is subject to an order under 23 Pa.C.S. Ch. 61 (relating to (9) If the adult is subject to an order under 23 Pa.C.S. Ch. 61 (relating to
protection from abuse) and is committed to a local correctional facility for a protection from abuse) and is committed to a local correctional facility for a
violation of the order or for a personal injury crime against a victim protected violation of the order or for a personal injury crime against a victim protected
by the order, to receive immediate notice of the release of the adult on bail. by the order, to receive immediate notice of the release of the adult on bail.
(10) To receive notice if an adult is committed to a mental health facility from (10) To receive notice if an adult is committed to a mental health facility from
a State correctional institution and notice of the discharge, transfer or escape a State correctional institution and notice of the discharge, transfer or escape
of the adult from the mental health facility. of the adult from the mental health facility.
(11) To have assistance in the preparation of, submission of and follow-up (11) To have assistance in the preparation of, submission of and follow-up
on financial assistance claims to the bureau. on financial assistance claims to the bureau.
(12) To be notified of the details of the final disposition of the case of a (12) To be notified of the details of the final disposition of the case of a
juvenile consistent with 42 Pa.C.S. 6336(f) (relating to conduct of hearings). juvenile consistent with 42 Pa.C.S. 6336(f) (relating to conduct of hearings).
(13) Upon the request of the victim of a personal injury crime, to be notified (13) Upon the request of the victim of a personal injury crime, to be notified
of the termination of the courts jurisdiction. of the termination of the courts jurisdiction.
1.6 BARRIERS TO DUE PROCESS IN COURT PROCEEDINGS 1.6 BARRIERS TO DUE PROCESS IN COURT PROCEEDINGS
Even when the criminal justice system has responded appropriately, a victim or Even when the criminal justice system has responded appropriately, a victim or
defendant may face barriers due to limited English proficiency, a visual impairment, or defendant may face barriers due to limited English proficiency, a visual impairment, or
a cognitive disability. These barriers can interfere with a persons understanding of the a cognitive disability. These barriers can interfere with a persons understanding of the
criminal justice process and limit their ability to access services. criminal justice process and limit their ability to access services.
Scarce economic resources may also compromise a victims access to the criminal Scarce economic resources may also compromise a victims access to the criminal
justice system. If a victim lacks transportation or child care they may find it difficult to justice system. If a victim lacks transportation or child care they may find it difficult to
arrive at the court house on time and remain there for the duration of a trial. Victims arrive at the court house on time and remain there for the duration of a trial. Victims
also report that some employers are unwilling to give them time off to attend the trial. also report that some employers are unwilling to give them time off to attend the trial.
These victims find themselves forced to choose between justice and employment. These victims find themselves forced to choose between justice and employment.
1.7 THE ROLE OF THE VICTIM ADVOCATE IN SEXUAL ASSAULT CASES 1.7 THE ROLE OF THE VICTIM ADVOCATE IN SEXUAL ASSAULT CASES
The victim advocate plays a particularly important role in cases of sexual The victim advocate plays a particularly important role in cases of sexual
assault. While the prosecutor represents the Commonwealth, and the defense attorney assault. While the prosecutor represents the Commonwealth, and the defense attorney
represents the defendant, the advocates entire job is to support the victim and intervene represents the defendant, the advocates entire job is to support the victim and intervene
on her behalf. on her behalf.
For a survivor of sexual assault, the medical and legal system can be frightening, For a survivor of sexual assault, the medical and legal system can be frightening,
frustrating, and confusing. Dealing with forensic exams, insurance paperwork, law frustrating, and confusing. Dealing with forensic exams, insurance paperwork, law
enforcement, prosecutors, and judicial officials can be intimidating.89 Meeting with the enforcement, prosecutors, and judicial officials can be intimidating.89 Meeting with the
myriad of people involved in prosecuting a case can be stressful and court appearances myriad of people involved in prosecuting a case can be stressful and court appearances
can be overwhelming. The time and effort it takes for a case to go through the legal can be overwhelming. The time and effort it takes for a case to go through the legal
system can make a victim reluctant to pursue the case. system can make a victim reluctant to pursue the case.
Victims often recount how they have dealt with the emotional trauma of the Victims often recount how they have dealt with the emotional trauma of the
89 The Trainers Tool Box, Chapter 9, The Pennsylvania Coalition Against Rape, 2000. 89 The Trainers Tool Box, Chapter 9, The Pennsylvania Coalition Against Rape, 2000.
assault, only to have painful memories flood back when the case finally reaches court. assault, only to have painful memories flood back when the case finally reaches court.
That emotional trauma may be intensified if it is the first time the victim has seen the That emotional trauma may be intensified if it is the first time the victim has seen the
perpetrator since the preliminary hearing. perpetrator since the preliminary hearing.
Victims also report that one of the most frustrating elements of the court process Victims also report that one of the most frustrating elements of the court process
is the continuance. While a continuance is often necessary, multiple continuances can be is the continuance. While a continuance is often necessary, multiple continuances can be
emotionally and physically draining. Victims describe bracing themselves to testify over emotionally and physically draining. Victims describe bracing themselves to testify over
and over, only to have the case continued. and over, only to have the case continued.
Victim Advocates are available to help victims cope with the frustrating aspects Victim Advocates are available to help victims cope with the frustrating aspects
of the criminal justice system. Rape crisis centers provide advocates, free of charge, of the criminal justice system. Rape crisis centers provide advocates, free of charge,
for court accompaniment, counseling, and assistance with victims compensation for court accompaniment, counseling, and assistance with victims compensation
paperwork. paperwork.
In fact, involvement of a victim advocate can be beneficial for the entire court In fact, involvement of a victim advocate can be beneficial for the entire court
process. Research demonstrates that when a victim is working with an advocate, she is process. Research demonstrates that when a victim is working with an advocate, she is
more likely to stay committed to the prosecution of her perpetrator and more willing to more likely to stay committed to the prosecution of her perpetrator and more willing to
be involved in the court process. be involved in the court process.
Chapter 2 Chapter 2
GENERAL PROVISIONS OF GENERAL PROVISIONS OF

SEXUALLY VIOLENT SEXUALLY VIOLENT
CRIMES CRIMES
General Provisions of Sexual Violence Crimes General Provisions of Sexual Violence Crimes
Chapter Two Table of Contents Chapter Two Table of Contents

2.1 CHAPTER OVERVIEW .............................................................................................. 3 2.1 CHAPTER OVERVIEW .............................................................................................. 3
2.2 DEFINITIONS ............................................................................................................ 3 2.2 DEFINITIONS ............................................................................................................ 3
A. Complainant........................................................................................................................ 3 A. Complainant........................................................................................................................ 3
1. Statutory Definition ................................................................................................... 3 1. Statutory Definition ................................................................................................... 3
2. Credibility....................................................................................................................... 3 2. Credibility....................................................................................................................... 3
(a) Corroboration.............................................................................................. 4 (a) Corroboration.............................................................................................. 4
3. Rape Shield Law .......................................................................................................... 4 3. Rape Shield Law .......................................................................................................... 4
(a) Exceptions Are Trial Issues ................................................................... 5 (a) Exceptions Are Trial Issues ................................................................... 5
(b) Prior Sexual Assault.................................................................................. 6 (b) Prior Sexual Assault.................................................................................. 6
4. Prompt Report ............................................................................................................. 6 4. Prompt Report ............................................................................................................. 6
(a) Evidence of Failure to Report Promptly ........................................... 6 (a) Evidence of Failure to Report Promptly ........................................... 6
(b) Hue and Cry Doctrine .............................................................................. 8 (b) Hue and Cry Doctrine .............................................................................. 8
(c) Special Considerations Involving Minor Victims .......................... 8 (c) Special Considerations Involving Minor Victims .......................... 8
B. Deviate Sexual Intercourse ........................................................................................... 9 B. Deviate Sexual Intercourse ........................................................................................... 9
1. Statutory Definition ................................................................................................... 9 1. Statutory Definition ................................................................................................... 9
2. Types: ............................................................................................................................... 9 2. Types: ............................................................................................................................... 9
(a) Oral and Anal Intercourse ...................................................................... 9 (a) Oral and Anal Intercourse ...................................................................... 9
(b) Penetration with a Foreign Object .................................................. 10 (b) Penetration with a Foreign Object .................................................. 10
3. Penetration ................................................................................................................. 10 3. Penetration ................................................................................................................. 10
(a) Oral Penetration Sufficient ................................................................. 11 (a) Oral Penetration Sufficient ................................................................. 11
(b) Oral Penetration Mouth or Tongue.............................................. 11 (b) Oral Penetration Mouth or Tongue.............................................. 11
C. Forcible Compulsion .................................................................................................... 11 C. Forcible Compulsion .................................................................................................... 11
1. Statutory Definition ................................................................................................ 11 1. Statutory Definition ................................................................................................ 11
2. Moral, Psychological or Intellectual Force .................................................... 12 2. Moral, Psychological or Intellectual Force .................................................... 12
3. Actual Force................................................................................................................ 13 3. Actual Force................................................................................................................ 13
(a) Degree of Force ........................................................................................ 14 (a) Degree of Force ........................................................................................ 14
(b) Resistance .................................................................................................. 14 (b) Resistance .................................................................................................. 14
D. Indecent Contact ............................................................................................................ 15 D. Indecent Contact ............................................................................................................ 15

1. Statutory Definition ............................................................................................... 15 1. Statutory Definition ............................................................................................... 15
(a) Genitals........................................................................................................ 15 (a) Genitals........................................................................................................ 15
(b) Other Intimate Parts ............................................................................. 16 (b) Other Intimate Parts ............................................................................. 16
(c) Touching...................................................................................................... 16 (c) Touching...................................................................................................... 16
E. Serious Bodily Injury.................................................................................................... 17 E. Serious Bodily Injury.................................................................................................... 17
2. Intent ............................................................................................................................. 18 2. Intent ............................................................................................................................. 18
3. Types ............................................................................................................................. 18 3. Types ............................................................................................................................. 18
4. Injuries that Do Not Constitute Serious Bodily Injury ......................... 18 4. Injuries that Do Not Constitute Serious Bodily Injury ......................... 18
F. Sexual Intercourse......................................................................................................... 19 F. Sexual Intercourse......................................................................................................... 19
(a) Intercourse - Ordinary Meaning ....................................................... 19 (a) Intercourse - Ordinary Meaning ....................................................... 19
(b) Penetration Requirement ................................................................... 19 (b) Penetration Requirement ................................................................... 19
(c) Emission Not Required ......................................................................... 21 (c) Emission Not Required ......................................................................... 21
2.3 AGE OF ACCUSED ............................................................................................... 22 2.3 AGE OF ACCUSED ............................................................................................... 22
A. Age of Accused: Generally .......................................................................................... 22 A. Age of Accused: Generally .......................................................................................... 22
1. Defendant Over 21 When Charged 1. Defendant Over 21 When Charged
But Under 18 At Time of Offense...................................................................... 23 But Under 18 At Time of Offense...................................................................... 23
B. Excluded Offenses from Jurisdiction of Juvenile Court ................................. 24 B. Excluded Offenses from Jurisdiction of Juvenile Court ................................. 24
1. Direct File Crimes .................................................................................................... 24 1. Direct File Crimes .................................................................................................... 24
2. Discretionary Certification .................................................................................. 26 2. Discretionary Certification .................................................................................. 26
(a) Certification to Criminal Court.......................................................... 26 (a) Certification to Criminal Court.......................................................... 26
2.4 AGE OF VICTIM ................................................................................................... 28 2.4 AGE OF VICTIM ................................................................................................... 28
A. Offenses Against Children .......................................................................................... 28 A. Offenses Against Children .......................................................................................... 28
B. Prohibition of Disclosure of Names of Minors ................................................. 32 B. Prohibition of Disclosure of Names of Minors ................................................. 32
Chapter Two Chapter Two

This chapter discusses general provisions and principles, as well as related This chapter discusses general provisions and principles, as well as related
statutory definitions, regarding crimes of sexual violence and sexual abuse. The chapter statutory definitions, regarding crimes of sexual violence and sexual abuse. The chapter
is divided into four sections. Section 2.2 lists the statutory definitions of common terms is divided into four sections. Section 2.2 lists the statutory definitions of common terms
found in sexual offenses, including: found in sexual offenses, including:
complainant complainant
deviate sexual intercourse deviate sexual intercourse
forcible compulsion forcible compulsion
indecent contact indecent contact
serious bodily injury serious bodily injury
sexual intercourse sexual intercourse
Section 2.3 explains the law in Pennsylvania when the alleged assailant is a minor. Section 2.3 explains the law in Pennsylvania when the alleged assailant is a minor.
Section 2.4 focuses on crimes specifically designed to address issues when the victim is Section 2.4 focuses on crimes specifically designed to address issues when the victim is
a minor. Section 2.4 also discusses the statutory prohibition against the release of the a minor. Section 2.4 also discusses the statutory prohibition against the release of the
name of a minor victim of sexual or physical abuse in accordance with 42 Pa.Cons.Stat. name of a minor victim of sexual or physical abuse in accordance with 42 Pa.Cons.Stat.
Ann. 5988. Ann. 5988.
2.2 DEFINITIONS 2.2 DEFINITIONS
A. Complainant1 A. Complainant1
1. Statutory Definition 1. Statutory Definition
18 Pa.Cons.stat.ann. 3101. Definitions 18 Pa.Cons.stat.ann. 3101. Definitions
Complainant. An alleged victim of a crime under this Complainant. An alleged victim of a crime under this
chapter. chapter.
2. Credibility of Complainant 2. Credibility of Complainant
The credibility of a complainant in a crime of sexual violence is to be The credibility of a complainant in a crime of sexual violence is to be
evaluated in the same manner as the complainant of any other crime. 18 Pa.Cons. evaluated in the same manner as the complainant of any other crime. 18 Pa.Cons.
Stat.Ann. 3106. Stat.Ann. 3106.
18 Pa.Cons.stat.ann. 3106. Testimony of complainants 18 Pa.Cons.stat.ann. 3106. Testimony of complainants
1 For additional detailed discussion regarding the testimony of the complainant, see Chapter 7, Section 7.4, TESTIMONY OF 1 For additional detailed discussion regarding the testimony of the complainant, see Chapter 7, Section 7.4, TESTIMONY OF
COMPLAINANT. COMPLAINANT.
The credibility of a complainant of an offense under this The credibility of a complainant of an offense under this
chapter shall be determined by the same standard as is the chapter shall be determined by the same standard as is the
credibility of a complainant of any other crime. The testimony credibility of a complainant of any other crime. The testimony
of a complainant need not be corroborated in prosecutions of a complainant need not be corroborated in prosecutions
under this chapter. No instructions shall be given cautioning under this chapter. No instructions shall be given cautioning
the jury to view the complainants testimony in any other the jury to view the complainants testimony in any other
way than that in which all complainants testimony is viewed. way than that in which all complainants testimony is viewed.
Attempts to impeach the credibility of the complainant are permissible. Attempts to impeach the credibility of the complainant are permissible.
See In Interest of Lawrence J., 456 A.2d 647, 649-650 (Pa. Super. 1983) See In Interest of Lawrence J., 456 A.2d 647, 649-650 (Pa. Super. 1983)
(evidence of victims reputation in community for truth and veracity is (evidence of victims reputation in community for truth and veracity is
admissible to impeach the victims credibility). See also, Commonwealth v. admissible to impeach the victims credibility). See also, Commonwealth v.
Minich, 4 A.3d 1063, 1072 (Pa. Super. 2010) (the admissibility of such evidence Minich, 4 A.3d 1063, 1072 (Pa. Super. 2010) (the admissibility of such evidence
is governed by rule limiting this type of evidence to evidence of witnesss is governed by rule limiting this type of evidence to evidence of witnesss
general reputation for truthfulness or untruthfulness); Commonwealth v. general reputation for truthfulness or untruthfulness); Commonwealth v.
Berry, 513 A.2d 410, 416 (Pa. Super. 1986) (It is true that the credibility Berry, 513 A.2d 410, 416 (Pa. Super. 1986) (It is true that the credibility
of a rape victim is measured according to the same standard applied to any of a rape victim is measured according to the same standard applied to any
other crime victim. The reputation witness must attest to the victims general other crime victim. The reputation witness must attest to the victims general
reputation in the community; he may not attest to the victims specific reputation in the community; he may not attest to the victims specific
behavior.). behavior.).
(a) Corroboration (a) Corroboration
No corroboration is necessary. Commonwealth v. Kunkle, 623 A.2d No corroboration is necessary. Commonwealth v. Kunkle, 623 A.2d
336, 338 (Pa. Super. 1993), appeal denied, 536 Pa. 621, 637 A.2d 281 (1993): 336, 338 (Pa. Super. 1993), appeal denied, 536 Pa. 621, 637 A.2d 281 (1993):
The Crimes Code also provides that uncorroborated testimony of the sex The Crimes Code also provides that uncorroborated testimony of the sex
offense victim may be sufficient to establish the guilt of the accused.2 offense victim may be sufficient to establish the guilt of the accused.2
3. Rape Shield Law3 3. Rape Shield Law3
> The Complainants Past Sexual Conduct Not Admissible > The Complainants Past Sexual Conduct Not Admissible
The purpose of the Rape Shield Law is to prevent a trial from shifting The purpose of the Rape Shield Law is to prevent a trial from shifting
its focus from the culpability of the accused toward the virtue and chastity its focus from the culpability of the accused toward the virtue and chastity
of the victim. Commonwealth v. Allburn, 721 A.2d 363, 366-367 (Pa.Super. of the victim. Commonwealth v. Allburn, 721 A.2d 363, 366-367 (Pa.Super.
1998), appeal denied, 559 Pa. 662, 739 A.2d 163 (1999). The Rape Shield Law 1998), appeal denied, 559 Pa. 662, 739 A.2d 163 (1999). The Rape Shield Law
is intended to exclude irrelevant and abusive inquiries regarding prior sexual is intended to exclude irrelevant and abusive inquiries regarding prior sexual
conduct of sexual assault complainants. Commonwealth v. Burns, 988 A.2d 684, conduct of sexual assault complainants. Commonwealth v. Burns, 988 A.2d 684,
689 (Pa. Super. 2009) (en banc), appeal denied, 608 Pa. 615, 8 A.3d 341 (2010). 689 (Pa. Super. 2009) (en banc), appeal denied, 608 Pa. 615, 8 A.3d 341 (2010).
Evidence of specific instances, opinions, or reputation of the complainants past Evidence of specific instances, opinions, or reputation of the complainants past
sexual conduct is generally not admissible. 18 Pa.Cons.Stat.Ann. 3104 (a). sexual conduct is generally not admissible. 18 Pa.Cons.Stat.Ann. 3104 (a).
2 For additional discussion, see 31 A.L.R.4th 120, Modern Status of Rule Regarding Necessity for Corroboration of Victims Testimony in 2 For additional discussion, see 31 A.L.R.4th 120, Modern Status of Rule Regarding Necessity for Corroboration of Victims Testimony in
Prosecution for Sexual Offense. Prosecution for Sexual Offense.
3 For additional detailed discussion of the Pennsylvania Rape Shield Statute, see Chapter 6, Section 6.8, EVIDENCE OF VICTIMS 3 For additional detailed discussion of the Pennsylvania Rape Shield Statute, see Chapter 6, Section 6.8, EVIDENCE OF VICTIMS
PAST SEXUAL CONDUCT and Chapter 7, Section 7.4(D)(2), Complainants Prior Sexual Conduct. PAST SEXUAL CONDUCT and Chapter 7, Section 7.4(D)(2), Complainants Prior Sexual Conduct.
18 Pa.Cons.Stat.Ann 3104. Evidence of victims sexual 18 Pa.Cons.Stat.Ann 3104. Evidence of victims sexual
conduct conduct
(a) General rule. -- Evidence of specific instances of the (a) General rule. -- Evidence of specific instances of the
alleged victims past sexual conduct, opinion evidence of alleged victims past sexual conduct, opinion evidence of
the alleged victims past sexual conduct, and reputation the alleged victims past sexual conduct, and reputation
evidence of the alleged victims past sexual conduct shall evidence of the alleged victims past sexual conduct shall
not be admissible in prosecutions under this chapter except not be admissible in prosecutions under this chapter except
evidence of the alleged victims past sexual conduct with the evidence of the alleged victims past sexual conduct with the
defendant where consent of the alleged victim is at issue defendant where consent of the alleged victim is at issue
and such evidence is otherwise admissible pursuant to the and such evidence is otherwise admissible pursuant to the
rules of evidence. rules of evidence.
(a) Exceptions are Issues for the Trial Court (a) Exceptions are Issues for the Trial Court
A defendant who proposes to offer evidence of an alleged victims past A defendant who proposes to offer evidence of an alleged victims past
sexual conduct pursuant to this section must file a written motion and offer sexual conduct pursuant to this section must file a written motion and offer
of proof prior to trial. If the trial court determines that the motion and offer of of proof prior to trial. If the trial court determines that the motion and offer of
proof are sufficient on their faces, the court must order an in-camera hearing proof are sufficient on their faces, the court must order an in-camera hearing
and shall make findings on the record as to the relevance and admissibility of and shall make findings on the record as to the relevance and admissibility of
the proposed evidence pursuant to the standards set forth in subsection (a) the proposed evidence pursuant to the standards set forth in subsection (a)
above. above.
There are four types of exceptions to the general prohibition against There are four types of exceptions to the general prohibition against
evidence of past sexual conduct of the victim: evidence of past sexual conduct of the victim:
(1) the text of the statute includes one specific exception (1) the text of the statute includes one specific exception
regarding the victims sexual conduct with the defendant regarding the victims sexual conduct with the defendant
where consent of the alleged victim is at issue and the evidence where consent of the alleged victim is at issue and the evidence
is otherwise admissible; 4
is otherwise admissible; 4
(2) evidence that negates directly the act of intercourse with (2) evidence that negates directly the act of intercourse with
which a defendant is charged; which a defendant is charged;
(3) evidence demonstrating a witness bias or evidence that (3) evidence demonstrating a witness bias or evidence that
attacks credibility; and attacks credibility; and
(4) evidence tending to directly exculpate the accused by (4) evidence tending to directly exculpate the accused by
showing that the alleged victim is biased and thus has motive showing that the alleged victim is biased and thus has motive
to lie, fabricate, or seek retribution via prosecution. to lie, fabricate, or seek retribution via prosecution.
See Commonwealth v. Burns, 988 A.2d 684, 689 (Pa.Super. 2009) (en banc), See Commonwealth v. Burns, 988 A.2d 684, 689 (Pa.Super. 2009) (en banc),
appeal denied, 608 Pa. 615, 8 A.3d 341 (2010); Commonwealth v. Allburn, appeal denied, 608 Pa. 615, 8 A.3d 341 (2010); Commonwealth v. Allburn,
721 A.2d 363, 367 (Pa.Super. 1998), appeal denied, 559 Pa. 662, 739 A.2d 163 721 A.2d 363, 367 (Pa.Super. 1998), appeal denied, 559 Pa. 662, 739 A.2d 163
(1999). (1999).
4 See 18 Pa.Cons.Stat.Ann. 3104(a). 4 See 18 Pa.Cons.Stat.Ann. 3104(a).
(b) Prior Sexual Assault (b) Prior Sexual Assault
If the prior sexual conduct used to impeach the alleged victim was a If the prior sexual conduct used to impeach the alleged victim was a
prior sexual assault, then Section 3104 does not apply, and the evidence is prior sexual assault, then Section 3104 does not apply, and the evidence is
evaluated under the general evidentiary rules. evaluated under the general evidentiary rules.
In Commonwealth v. Johnson, 536 Pa. 153, 638 A.2d 940 (1994), In Commonwealth v. Johnson, 536 Pa. 153, 638 A.2d 940 (1994),
the Supreme Court of Pennsylvania held that the Rape Shield Law did not the Supreme Court of Pennsylvania held that the Rape Shield Law did not
prohibit the admission of evidence regarding a prior sexual assault suffered prohibit the admission of evidence regarding a prior sexual assault suffered
by the ten-year-old victim when the defendant sought introduction of the by the ten-year-old victim when the defendant sought introduction of the
testimony to establish that the victim was blaming him for the assault at the testimony to establish that the victim was blaming him for the assault at the
instigation of another individual who had sexually assaulted her on a prior instigation of another individual who had sexually assaulted her on a prior
occasion. Evidence of prior sexual assaults was not considered to be conduct occasion. Evidence of prior sexual assaults was not considered to be conduct
of the victim that would reflect upon her reputation for chastity, so the Rape of the victim that would reflect upon her reputation for chastity, so the Rape
Shield Law did not apply. Evidence that (the victim) had been subject to a Shield Law did not apply. Evidence that (the victim) had been subject to a
previous sexual assault would not reflect upon (her) reputation for chastity. previous sexual assault would not reflect upon (her) reputation for chastity.
To be a victim is not conduct of the person victimized. It would be illogical to To be a victim is not conduct of the person victimized. It would be illogical to
conclude that the Rape Shield Law intended to prohibit this type of testimony. conclude that the Rape Shield Law intended to prohibit this type of testimony.
Id. at 942.5 Id. at 942.5
4. Prompt Report6 4. Prompt Report6
There is no requirement that a complainant promptly report allegations to There is no requirement that a complainant promptly report allegations to
a public authority. 18 Pa.Cons.Stat.Ann. 3105. However, the lack of a prompt a public authority. 18 Pa.Cons.Stat.Ann. 3105. However, the lack of a prompt
report may lead to impeachment evidence. report may lead to impeachment evidence.
18 Pa.Cons.Stat.Ann. 3105. Prompt complaint 18 Pa.Cons.Stat.Ann. 3105. Prompt complaint
Prompt reporting to public authority is not required in a Prompt reporting to public authority is not required in a
prosecution under this chapter: Provided, however, That prosecution under this chapter: Provided, however, That
nothing in this section shall be construed to prohibit a nothing in this section shall be construed to prohibit a
defendant from introducing evidence of the complainants defendant from introducing evidence of the complainants
failure to promptly report the crime if such evidence would failure to promptly report the crime if such evidence would
be admissible pursuant to the rules of evidence. be admissible pursuant to the rules of evidence.
(a) Evidence of Failure to Promptly Report to Impeach (a) Evidence of Failure to Promptly Report to Impeach
Credibility of Complainant Credibility of Complainant
If otherwise admissible, this section does not prohibit the admission of If otherwise admissible, this section does not prohibit the admission of
evidence of a failure to promptly report the alleged incident. The Pennsylvania
7
evidence of a failure to promptly report the alleged incident. The Pennsylvania
7
Supreme Court stated in Commonwealth v. Lane, 521 Pa. 390, 398, 555 A.2d Supreme Court stated in Commonwealth v. Lane, 521 Pa. 390, 398, 555 A.2d
5 See also Commonwealth v. Holder, 815 A.2d 1115, 1118-1119 (Pa.Super. 2003), appeal denied, 573 Pa. 703, 5 See also Commonwealth v. Holder, 815 A.2d 1115, 1118-1119 (Pa.Super. 2003), appeal denied, 573 Pa. 703,
827 A.2d 430 (2003). 827 A.2d 430 (2003).
6 For additional detailed discussion of prompt complaint, see Chapter 7, Section 7.7, EVIDENCE OF 6 For additional detailed discussion of prompt complaint, see Chapter 7, Section 7.7, EVIDENCE OF
PROMPT COMPLAINT. PROMPT COMPLAINT.
7 Commonwealth v. Jones, 672 A.2d 1353, 1358 (Pa. Super. 1996). 7 Commonwealth v. Jones, 672 A.2d 1353, 1358 (Pa. Super. 1996).
1246, 1250 (1989), The lack of a prompt complaint by a victim of a crime, 1246, 1250 (1989), The lack of a prompt complaint by a victim of a crime,
although not dispositive of the merits of the case, may justifiably produce a although not dispositive of the merits of the case, may justifiably produce a
doubt as to whether the offense indeed occurred, or whether it was a recent doubt as to whether the offense indeed occurred, or whether it was a recent
fabrication by the complaining witness. fabrication by the complaining witness.
If a complaint is delayed substantially without any reasonable If a complaint is delayed substantially without any reasonable
explanation, an inference can be drawn regarding the credibility of that explanation, an inference can be drawn regarding the credibility of that
complaint and against whether the incident in fact occurred. Commonwealth complaint and against whether the incident in fact occurred. Commonwealth
v. Thomas, 904 A.2d 964, 969-970 (Pa.Super. 2006), quoting Commonwealth v. Thomas, 904 A.2d 964, 969-970 (Pa.Super. 2006), quoting Commonwealth
v. Snoke, 525 Pa. 295, 300, 580 A.2d 295, 297 (1989). v. Snoke, 525 Pa. 295, 300, 580 A.2d 295, 297 (1989).
Exception: There is an exception to the general rule of admissibility Exception: There is an exception to the general rule of admissibility
if the victim were unable to comprehend the sexual attack. Although a if the victim were unable to comprehend the sexual attack. Although a
defendant customarily may use the failure to make a prompt complaint defendant customarily may use the failure to make a prompt complaint
to question the veracity of the victims testimony, an exception is when to question the veracity of the victims testimony, an exception is when
the victim did not comprehend the offensiveness of the contact at the the victim did not comprehend the offensiveness of the contact at the
time of its occurrence. In these situations, the absence of an immediate time of its occurrence. In these situations, the absence of an immediate
complaint may not be used to question whether the conduct did in fact complaint may not be used to question whether the conduct did in fact
occur. For example, see: occur. For example, see:
Commonwealth v. Snoke, 525 Pa. 295, 302, 580 A.2d 295, Commonwealth v. Snoke, 525 Pa. 295, 302, 580 A.2d 295,
298 (1989)(victim was five years old and alleged attacker was 298 (1989)(victim was five years old and alleged attacker was
victims father). victims father).
However, it may still be a jury issue. See Commonwealth v. However, it may still be a jury issue. See Commonwealth v.
Lane, 521 Pa. 390, 398, 555 A.2d 1246, 1250 (1989): The Lane, 521 Pa. 390, 398, 555 A.2d 1246, 1250 (1989): The
real question in matters concerning youthful complainants is real question in matters concerning youthful complainants is
whether the immaturity of the child occasioned the delay as whether the immaturity of the child occasioned the delay as
opposed to a design to deceive. In determining whether or opposed to a design to deceive. In determining whether or
not the delay reflects the insincerity of the complainant, the not the delay reflects the insincerity of the complainant, the
maturity is merely an additional factor to be considered by the maturity is merely an additional factor to be considered by the
jury in deciding the question. jury in deciding the question.
Jury Instruction: The prompt complaint instruction is based upon 8 Jury Instruction: The prompt complaint instruction is based upon 8
the theory that the victim of a sexual assault would reveal the assault the theory that the victim of a sexual assault would reveal the assault
occurred at the first available opportunity. Commonwealth v. Thomas, occurred at the first available opportunity. Commonwealth v. Thomas,
904 A.2d 964, 970 (Pa. Super. 2006). The use of the instruction is to be 904 A.2d 964, 970 (Pa. Super. 2006). The use of the instruction is to be
determined on a case-by-case basis pursuant to a subjective standard determined on a case-by-case basis pursuant to a subjective standard
based upon the age and condition of the victim. Id. based upon the age and condition of the victim. Id.
The Superior Court, in Commonwealth v. Thomas, supra, provided The Superior Court, in Commonwealth v. Thomas, supra, provided
examples of the factors the trial court should use in deciding whether examples of the factors the trial court should use in deciding whether
to give the prompt complaint charge: to give the prompt complaint charge:
8 For additional detailed discussion of the prompt complaint charge, see Chapter 7, Section 7.7(C), Prompt Complaint Instruction. 8 For additional detailed discussion of the prompt complaint charge, see Chapter 7, Section 7.7(C), Prompt Complaint Instruction.
the victim is a minor who may not have appreciated the the victim is a minor who may not have appreciated the
offensive nature of the conduct; offensive nature of the conduct;
if the perpetrator is one with authority or custodial control if the perpetrator is one with authority or custodial control
over the victim; over the victim;
if the victim suffers from a mental disability or diminished if the victim suffers from a mental disability or diminished
capacity. capacity.
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006). Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006).
(b) Hue and Cry Doctrine (b) Hue and Cry Doctrine
Under the hue and cry doctrine, a prompt complaint allows for an Under the hue and cry doctrine, a prompt complaint allows for an
inference that the allegations are credible because there has been less time inference that the allegations are credible because there has been less time
for fabrication, while a complaint delayed without reasonable explanation for fabrication, while a complaint delayed without reasonable explanation
allows for the opposite inference. Commonwealth v. Snoke, 525 Pa. 295, 580 allows for the opposite inference. Commonwealth v. Snoke, 525 Pa. 295, 580
A.2d 295 (1990). A.2d 295 (1990).
In Commonwealth v. Barger, 743 A.2d 477 (Pa. Super. 1999), the In Commonwealth v. Barger, 743 A.2d 477 (Pa. Super. 1999), the
appellant repeatedly sexually assaulted his 15 year-old stepdaughter. The appellant repeatedly sexually assaulted his 15 year-old stepdaughter. The
victim did not tell anyone about those assaults until the appellant was out of victim did not tell anyone about those assaults until the appellant was out of
the home for an extended period of time because the appellant had beaten and the home for an extended period of time because the appellant had beaten and
intimidated her and her mother. The trial court permitted the Commonwealth intimidated her and her mother. The trial court permitted the Commonwealth
to introduce evidence concerning this history of physical violence in its case- to introduce evidence concerning this history of physical violence in its case-
in-chief. On appeal, an en banc panel of the Superior Court affirmed the ruling in-chief. On appeal, an en banc panel of the Superior Court affirmed the ruling
and held that in sexual assault cases, evidence which explains lack of prompt and held that in sexual assault cases, evidence which explains lack of prompt
complaint is admissible in the Commonwealths case-in-chief. Id. at 480-481. complaint is admissible in the Commonwealths case-in-chief. Id. at 480-481.
In Commonwealth v. Dillon, 863 A.2d 597 (Pa. Super. 2004), affd, 592 In Commonwealth v. Dillon, 863 A.2d 597 (Pa. Super. 2004), affd, 592
Pa. 351, 925 A.2d 131 (2007), both the Superior Court and the Supreme Court Pa. 351, 925 A.2d 131 (2007), both the Superior Court and the Supreme Court
held that evidence of the defendants physical abuse of the minor victims held that evidence of the defendants physical abuse of the minor victims
mother and brother, which intimidated the victim, was admissible at trial mother and brother, which intimidated the victim, was admissible at trial
as substantive evidence in the Commonwealths case-in-chief to explain the as substantive evidence in the Commonwealths case-in-chief to explain the
victims lack of prompt complaint. 863 A.2d at 603; 925 A.2d at 139. victims lack of prompt complaint. 863 A.2d at 603; 925 A.2d at 139.
(c) Special Considerations Involving Minor Victims (c) Special Considerations Involving Minor Victims
Consideration should be given to factors inherent in cases involving Consideration should be given to factors inherent in cases involving
minor victims that may explain the delay without reflecting unfavorably on minor victims that may explain the delay without reflecting unfavorably on
the minor witnesss credibility:9 the minor witnesss credibility:9
Immaturity of the victim that would cause the child victim not Immaturity of the victim that would cause the child victim not
to appreciate the offensiveness of the encounter and the need to appreciate the offensiveness of the encounter and the need
for prompt disclosure; for prompt disclosure;
9 These factors are set forth in Commonwealth v. Ables, 590 A.2d 334 (Pa. Super. 1991), appeal denied, 528 Pa. 620, 597 A.2d 1150(1991), 9 These factors are set forth in Commonwealth v. Ables, 590 A.2d 334 (Pa. Super. 1991), appeal denied, 528 Pa. 620, 597 A.2d 1150(1991),
and in Commonwealth v. Snoke, 525 Pa. 295, 302, 580 A.2d 295, 298 (1990). and in Commonwealth v. Snoke, 525 Pa. 295, 302, 580 A.2d 295, 298 (1990).
The lack of a prompt complaint in order to protect the truly The lack of a prompt complaint in order to protect the truly
guilty party, as in the case of a child blaming an innocent party guilty party, as in the case of a child blaming an innocent party
for the wrongdoing of a parent; for the wrongdoing of a parent;
When a parent tells a child to keep a secret and the child is of When a parent tells a child to keep a secret and the child is of
tender years with no reason to question the parent; tender years with no reason to question the parent;
The age of the victim; The age of the victim;
The mental and physical condition of the victim; The mental and physical condition of the victim;
The atmosphere and physical setting in which the incidents The atmosphere and physical setting in which the incidents
were alleged to have taken place; were alleged to have taken place;
The extent to which the accused may have been in a position of The extent to which the accused may have been in a position of
authority, domination or custodial control over the victim; authority, domination or custodial control over the victim;
Whether the victim was under duress. Whether the victim was under duress.
B. Deviate Sexual Intercourse B. Deviate Sexual Intercourse
18 Pa.Cons.Stat.Ann. 3101 defines deviate sexual intercourse as 18 Pa.Cons.Stat.Ann. 3101 defines deviate sexual intercourse as
Sexual intercourse per os or per anus between human Sexual intercourse per os or per anus between human
beings and any form of sexual intercourse with an animal. beings and any form of sexual intercourse with an animal.
The term also includes penetration, however slight, of the The term also includes penetration, however slight, of the
genitals or anus of another person with a foreign object for genitals or anus of another person with a foreign object for
any purpose other than good faith medical, hygienic or law any purpose other than good faith medical, hygienic or law
enforcement procedures.10 enforcement procedures.10
The crime of involuntary deviate sexual intercourse, 18 Pa.Cons.Stat.Ann. The crime of involuntary deviate sexual intercourse, 18 Pa.Cons.Stat.Ann.
3123, occurs when the actor, by physical compulsion or threats thereof, coerces 3123, occurs when the actor, by physical compulsion or threats thereof, coerces
the victim to engage in acts of anal and/or oral intercourse. Commonwealth v. the victim to engage in acts of anal and/or oral intercourse. Commonwealth v.
Andrulewicz, 911 A.2d 162 (Pa. Super. 2006), appeal denied, 592 Pa. 778, 926 Andrulewicz, 911 A.2d 162 (Pa. Super. 2006), appeal denied, 592 Pa. 778, 926
A.2d 972 (2007). A.2d 972 (2007).
2. Types 2. Types
(a) Oral and Anal Intercourse (a) Oral and Anal Intercourse
Elements: oral and anal sex are each types of deviate sexual intercourse. Elements: oral and anal sex are each types of deviate sexual intercourse.
See Commonwealth v. Dorm, 971 A.2d 1284, 1286 (Pa.Super. 2009). See Commonwealth v. Dorm, 971 A.2d 1284, 1286 (Pa.Super. 2009).
10 18 Pa.Cons.stat.ann. 3101. 10 18 Pa.Cons.stat.ann. 3101.
The elements of deviate sexual intercourse are: (1) sexual intercourse The elements of deviate sexual intercourse are: (1) sexual intercourse
per os or per anus, (2) between human beings. per os or per anus, (2) between human beings.
Per Os or Per Anus: these terms describe oral and anal sex, i.e., Per Os or Per Anus: these terms describe oral and anal sex, i.e.,
intercourse through or by means of the mouth or posterior opening intercourse through or by means of the mouth or posterior opening
of the alimentary canal. Commonwealth v. Kelley, 569 Pa. 179, 186, of the alimentary canal. Commonwealth v. Kelley, 569 Pa. 179, 186,
801 A.2d 551, 555 (Pa. 2002). 801 A.2d 551, 555 (Pa. 2002).
Oral Sex: [D]eviate sexual intercourse includes oral sex. Oral Sex: [D]eviate sexual intercourse includes oral sex.
Commonwealth v. Jacob, 867 A.2d 614, 617 (Pa. Super. 2005); Commonwealth v. Jacob, 867 A.2d 614, 617 (Pa. Super. 2005);
Commonwealth v. Wilson 825 A.2d 710, 714 (Pa. Super. 2003) Commonwealth v. Wilson 825 A.2d 710, 714 (Pa. Super. 2003)
(insertion of testicles into victims mouth clearly constituted oral (insertion of testicles into victims mouth clearly constituted oral
intercourse). intercourse).
Vaginal Oral Sex: Deviate sexual intercourse is considered to have Vaginal Oral Sex: Deviate sexual intercourse is considered to have
occurred if ones mouth or tongue penetrates the vaginal area of occurred if ones mouth or tongue penetrates the vaginal area of
another. In Interest of J.R., 648 A.2d 28, 33 (Pa. Super. 1994), appeal another. In Interest of J.R., 648 A.2d 28, 33 (Pa. Super. 1994), appeal
denied, 540 Pa. 584, 655 A.2d 515 (Pa. 1995). denied, 540 Pa. 584, 655 A.2d 515 (Pa. 1995).
Contrasted with Sexual Intercourse: Sexual intercourse is defined as Contrasted with Sexual Intercourse: Sexual intercourse is defined as
the physical sexual contact between two individuals that involves the the physical sexual contact between two individuals that involves the
genitalia of at least one person. Commonwealth v. Kelley, 569 Pa. 179, genitalia of at least one person. Commonwealth v. Kelley, 569 Pa. 179,
186, 801 A.2d 551, 555 (Pa. 2002). Sexual intercourse is distinct from 186, 801 A.2d 551, 555 (Pa. 2002). Sexual intercourse is distinct from
deviate sexual intercourse in that sexual intercourse also includes deviate sexual intercourse in that sexual intercourse also includes
intercourse in its ordinary meaning. Id., 569 Pa. at 185, 801 A.2d at intercourse in its ordinary meaning. Id., 569 Pa. at 185, 801 A.2d at
555. 555.
(b) Penetration with a Foreign Object (b) Penetration with a Foreign Object
Elements: (1) penetration, however slight, Elements: (1) penetration, however slight,
(2) of the genitals or anus of another person, (2) of the genitals or anus of another person,
(3) with a foreign object for any purpose other than (3) with a foreign object for any purpose other than
good faith medical, hygienic or law enforcement good faith medical, hygienic or law enforcement
procedures. procedures.
Foreign Object: 18 Pa.Cons.Stat.Ann. 3101 defines foreign object Foreign Object: 18 Pa.Cons.Stat.Ann. 3101 defines foreign object
as [i]ncludes any physical object not a part of the actors body. as [i]ncludes any physical object not a part of the actors body.
Digital Penetration: Digital penetration of the vagina, i.e., by a finger, Digital Penetration: Digital penetration of the vagina, i.e., by a finger,
is not deviate sexual intercourse. Commonwealth v. Kelley, 569 Pa. is not deviate sexual intercourse. Commonwealth v. Kelley, 569 Pa.
179, 186, 801 A.2d 551, 555 (Pa. 2002) (must be with a foreign object, 179, 186, 801 A.2d 551, 555 (Pa. 2002) (must be with a foreign object,
not a part of the human body). not a part of the human body).
3. Penetration 3. Penetration
In order to sustain a conviction for involuntary deviate sexual intercourse, In order to sustain a conviction for involuntary deviate sexual intercourse,
the Commonwealth must establish the perpetrator engaged in acts of oral or anal the Commonwealth must establish the perpetrator engaged in acts of oral or anal
intercourse, which involved penetration however slight. intercourse, which involved penetration however slight.
In order to establish penetration, some oral contact is In order to establish penetration, some oral contact is
required. See Commonwealth v. Trimble, 419 Pa.Super. 108, required. See Commonwealth v. Trimble, 419 Pa.Super. 108,
615 A.2d 48 (1992) (finding actual penetration of the vagina 615 A.2d 48 (1992) (finding actual penetration of the vagina
is not necessary; some form of oral contact with the genitalia is not necessary; some form of oral contact with the genitalia
is all that is required). Moreover, a person can penetrate by is all that is required). Moreover, a person can penetrate by
use of the mouth or the tongue. See In the Interest of J.R., 436 use of the mouth or the tongue. See In the Interest of J.R., 436
Pa.Super. 416, 648 A.2d 28, 33 (1994), appeal denied, 540 Pa. Pa.Super. 416, 648 A.2d 28, 33 (1994), appeal denied, 540 Pa.
584, 655 A.2d 515 (1995) (stating Deviate sexual intercourse 584, 655 A.2d 515 (1995) (stating Deviate sexual intercourse
is considered to have occurred if ones mouth or tongue is considered to have occurred if ones mouth or tongue
penetrates the vaginal area of another) penetrates the vaginal area of another)
Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003). Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003).
Penetration need not reach the vagina or farther reaches of female genitalia. Penetration need not reach the vagina or farther reaches of female genitalia.
In re A.D., 771 A.2d 45, 49 (Pa. Super. 2001). In re A.D., 771 A.2d 45, 49 (Pa. Super. 2001).
(a) Oral Penetration Sufficient (a) Oral Penetration Sufficient
It has been held that oral contact with the female genitalia is sufficient It has been held that oral contact with the female genitalia is sufficient
to support the penetration requirement for IDSI.11 to support the penetration requirement for IDSI.11
(b) Oral Penetration Mouth or Tongue (b) Oral Penetration Mouth or Tongue
An assailant can penetrate by use of the mouth or tongue. An assailant can penetrate by use of the mouth or tongue.
Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003).12 Some form Commonwealth v. Wilson, 825 A.2d 710, 714 (Pa. Super. 2003).12 Some form
of oral contact with the genitalia is all that is required.13 of oral contact with the genitalia is all that is required.13
C. Forcible Compulsion C. Forcible Compulsion
18 Pa. Cons. Stat. Ann. 3101 defines forcible compulsion as: 18 Pa. Cons. Stat. Ann. 3101 defines forcible compulsion as:
Compulsion by use of physical, intellectual, moral, emotional Compulsion by use of physical, intellectual, moral, emotional
or psychological force, either express or implied. The term or psychological force, either express or implied. The term
includes, but is not limited to, compulsion resulting in another includes, but is not limited to, compulsion resulting in another
persons death, whether the death occurred before, during persons death, whether the death occurred before, during
or after sexual intercourse.14 or after sexual intercourse.14
11 Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa. Super. 1992); Commonwealth v. Ziegler, 550 A.2d 567, 569 (Pa. Super. 1988). 11 Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa. Super. 1992); Commonwealth v. Ziegler, 550 A.2d 567, 569 (Pa. Super. 1988).
12 See also, In the Interest of J.R., 648 A.2d 28, 33 (Pa. Super. 1994), appeal denied, 540 Pa. 584, 655 A.2d 515 (1995): Deviate sexual 12 See also, In the Interest of J.R., 648 A.2d 28, 33 (Pa. Super. 1994), appeal denied, 540 Pa. 584, 655 A.2d 515 (1995): Deviate sexual
intercourse is considered to have occurred if ones mouth or tongue penetrates the vaginal area of another; Commonwealth v. L.N., 787 intercourse is considered to have occurred if ones mouth or tongue penetrates the vaginal area of another; Commonwealth v. L.N., 787
A.2d 1064, 1070 (Pa. Super. 2001), appeal denied, 569 Pa. 680, 800 A.2d 931 (2002) . A.2d 1064, 1070 (Pa. Super. 2001), appeal denied, 569 Pa. 680, 800 A.2d 931 (2002) .
13 Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa. Super. 1992). 13 Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa. Super. 1992).
14 18 Pa. Cons. stat. ann. 3101. 14 18 Pa. Cons. stat. ann. 3101.
It is well established that in order to prove the forcible compulsion It is well established that in order to prove the forcible compulsion
component, the Commonwealth must establish, beyond a reasonable doubt, component, the Commonwealth must establish, beyond a reasonable doubt,
that the defendant used either physical force, a threat of physical force, or that the defendant used either physical force, a threat of physical force, or
psychological coercion, since the mere showing of a lack of consent does not psychological coercion, since the mere showing of a lack of consent does not
support a conviction for rape ... by forcible compulsion. Commonwealth v. support a conviction for rape ... by forcible compulsion. Commonwealth v.
Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010). Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010).
2. Moral, Psychological or Intellectual Force 2. Moral, Psychological or Intellectual Force
Forcible Compulsion includes not only physical force or violence but also Forcible Compulsion includes not only physical force or violence but also
moral, psychological, or intellectual force used to compel a person to engage in moral, psychological, or intellectual force used to compel a person to engage in
sexual intercourse against that persons will. Commonwealth v. Eckrote, 12 sexual intercourse against that persons will. Commonwealth v. Eckrote, 12
A.3d 383, 387 (Pa. Super. 2010). A.3d 383, 387 (Pa. Super. 2010).
Youthful Victims: The appellate courts have recognized the influence an Youthful Victims: The appellate courts have recognized the influence an
adult has over a child. In Commonwealth v. Rhodes, 510 Pa. 537, 510 adult has over a child. In Commonwealth v. Rhodes, 510 Pa. 537, 510
A.2d 1217, (1986), the Pennsylvania Supreme Court stated: A.2d 1217, (1986), the Pennsylvania Supreme Court stated:
There is an element of forcible compulsion, or the There is an element of forcible compulsion, or the
threat of forcible compulsion that would prevent threat of forcible compulsion that would prevent
resistance by a person of reasonable resolution, resistance by a person of reasonable resolution,
inherent in the situation in which an adult who is with a inherent in the situation in which an adult who is with a
child who is younger, smaller, less psychologically and child who is younger, smaller, less psychologically and
emotionally mature, and less sophisticated than the emotionally mature, and less sophisticated than the
adult, instructs the child to submit to the performance adult, instructs the child to submit to the performance
of sexual acts. This is especially so where the child of sexual acts. This is especially so where the child
knows and trusts the adult. In such cases, forcible knows and trusts the adult. In such cases, forcible
compulsion or the threat of forcible compulsion compulsion or the threat of forcible compulsion
derives from the respective capacities of the child and derives from the respective capacities of the child and
the adult sufficient to induce the child to submit to the the adult sufficient to induce the child to submit to the
wishes of the adult (prevent resistance), without the wishes of the adult (prevent resistance), without the
use of physical force or violence or the explicit threat use of physical force or violence or the explicit threat
of physical force or violence. of physical force or violence.
Id., 510 Pa. at 556, 510 A.2d at 1227. Id., 510 Pa. at 556, 510 A.2d at 1227.
In Commonwealth v. Ables, 590 A.2d 334 (Pa. Super. 1991), In Commonwealth v. Ables, 590 A.2d 334 (Pa. Super. 1991),
appeal denied, 528 Pa. 620, 597 A.2d 1150 (1991), the trial court appeal denied, 528 Pa. 620, 597 A.2d 1150 (1991), the trial court
correctly concluded that an uncles sexual assaults on his 13- correctly concluded that an uncles sexual assaults on his 13-
year old niece sufficiently frustrated her will to resist so that the year old niece sufficiently frustrated her will to resist so that the
assaults resulted from forcible compulsion. Although the uncle-niece assaults resulted from forcible compulsion. Although the uncle-niece
relationship was not alone sufficient to find forcible compulsion, he relationship was not alone sufficient to find forcible compulsion, he
convinced her that she could not tell anyone or else he would get in convinced her that she could not tell anyone or else he would get in
trouble. 590 A.2d at 337. trouble. 590 A.2d at 337.
The Pennsylvania Supreme Court again recognized that the The Pennsylvania Supreme Court again recognized that the
forcible compulsion is demonstrated by an adults clear influence forcible compulsion is demonstrated by an adults clear influence
over an inexperienced child in Commonwealth v. Fears, 575 Pa. 281, over an inexperienced child in Commonwealth v. Fears, 575 Pa. 281,
305, 836 A.2d 52, 66 (2003), cert. denied, 545 U.S. 1141 (2005), which 305, 836 A.2d 52, 66 (2003), cert. denied, 545 U.S. 1141 (2005), which
involved a 32-year-old man and a twelve-year-old child. involved a 32-year-old man and a twelve-year-old child.
3. Actual Force 3. Actual Force
The force needs to be such as to demonstrate an absence of consent, The force needs to be such as to demonstrate an absence of consent,
inducing submission without further resistance. Commonwealth v. Buffington, inducing submission without further resistance. Commonwealth v. Buffington,
574 Pa. 29, 42, 828 A.2d 1024, 1031 (2003). 574 Pa. 29, 42, 828 A.2d 1024, 1031 (2003).
It is well-established that in order to prove the forcible compulsion It is well-established that in order to prove the forcible compulsion
component, the Commonwealth must establish, beyond a component, the Commonwealth must establish, beyond a
reasonable doubt, that the defendant used either physical force, reasonable doubt, that the defendant used either physical force,
a threat of physical force, or psychological coercion, since the mere a threat of physical force, or psychological coercion, since the mere
showing of a lack of consent does not support a conviction for rape showing of a lack of consent does not support a conviction for rape
... by forcible compulsion. Commonwealth v. Brown, 556 Pa. 131, ... by forcible compulsion. Commonwealth v. Brown, 556 Pa. 131,
136, 727 A.2d 541, 544 (1999). In Commonwealth v. Rhodes, 510 136, 727 A.2d 541, 544 (1999). In Commonwealth v. Rhodes, 510
Pa. 537, 510 A.2d 1217 (1986), our Supreme Court stated that Pa. 537, 510 A.2d 1217 (1986), our Supreme Court stated that
forcible compulsion includes not only physical force or violence, forcible compulsion includes not only physical force or violence,
but also moral, psychological or intellectual force used to compel a but also moral, psychological or intellectual force used to compel a
person to engage in sexual intercourse against that persons will. person to engage in sexual intercourse against that persons will.
Rhodes, 510 Pa. at 555, 510 A.2d at 1226. Further, the degree of Rhodes, 510 Pa. at 555, 510 A.2d at 1226. Further, the degree of
force required to constitute rape is relative and depends on the force required to constitute rape is relative and depends on the
facts and particular circumstances of a given case. Commonwealth facts and particular circumstances of a given case. Commonwealth
v. Ruppert, 379 Pa. Super. 132, 579 A.2d 966, 968 (1990), appeal v. Ruppert, 379 Pa. Super. 132, 579 A.2d 966, 968 (1990), appeal
denied, 527 Pa. 593, 588 A.2d 914 (1991). See PENNSYLVANIA denied, 527 Pa. 593, 588 A.2d 914 (1991). See PENNSYLVANIA
BENCHBOOK ON CRIMES OF SEXUAL VIOLENCE, Ch. 2, pg. 27 (2d BENCHBOOK ON CRIMES OF SEXUAL VIOLENCE, Ch. 2, pg. 27 (2d
Edition 2009). Edition 2009).
Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa.Super. 2010). Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa.Super. 2010).
Examples: of Forcible Compulsion Examples: of Forcible Compulsion
Commonwealth v. Jones, 672 A.2d 1353 (Pa. Super. 1996) Commonwealth v. Jones, 672 A.2d 1353 (Pa. Super. 1996)
In a rape prosecution, the evidence was sufficient for the jury to In a rape prosecution, the evidence was sufficient for the jury to
find forcible compulsion, or threat of force, where evidence showed that find forcible compulsion, or threat of force, where evidence showed that
defendant physically assaulted victim, hit the victim in her face with a defendant physically assaulted victim, hit the victim in her face with a
pillow, held down the victims shoulders before and during intercourse, pillow, held down the victims shoulders before and during intercourse,
and removed victims clothing. Commonwealth v. Jones, 672 A.2d at 1354. and removed victims clothing. Commonwealth v. Jones, 672 A.2d at 1354.
Commonwealth v. Richter, 676 A.2d 1232, 1234 (Pa. Commonwealth v. Richter, 676 A.2d 1232, 1234 (Pa.
Super. 1996), affd, 551 Pa. 507, 711 A.2d 464 (1998). Super. 1996), affd, 551 Pa. 507, 711 A.2d 464 (1998).
In a rape prosecution, the evidence was sufficient for jury to find In a rape prosecution, the evidence was sufficient for jury to find
forcible compulsion or threat of forcible compulsion, where the defendant forcible compulsion or threat of forcible compulsion, where the defendant
pinned victim against table and removed her pants and undergarments; pinned victim against table and removed her pants and undergarments;
the victim failed to physically resist because of fear of physical retribution. the victim failed to physically resist because of fear of physical retribution.
Commonwealth v. Richter, 676 A.2d 1232, 1234 (Pa. Super. 1996), affd, Commonwealth v. Richter, 676 A.2d 1232, 1234 (Pa. Super. 1996), affd,
551 Pa. 507, 711 A.2d 464 (1998). 551 Pa. 507, 711 A.2d 464 (1998).
(a) Degree of Force (a) Degree of Force
The degree of force required to constitute rape is relative and depends The degree of force required to constitute rape is relative and depends
on the facts and particular circumstances of a given case. Commonwealth v. on the facts and particular circumstances of a given case. Commonwealth v.
Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010). Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010).
Pennsylvania courts have not drawn bright line rules regarding the Pennsylvania courts have not drawn bright line rules regarding the
degree of force required; instead the degree of that force is relative and degree of force required; instead the degree of that force is relative and
depends on the totality of the facts and circumstances of the particular depends on the totality of the facts and circumstances of the particular
case. See Commonwealth v. Riley, 643 A.2d 1090, 1091 (Pa. Super. 1994). case. See Commonwealth v. Riley, 643 A.2d 1090, 1091 (Pa. Super. 1994).
Factors to determine compulsion include: Factors to determine compulsion include:
(i) the respective ages of the victim and the accused; (i) the respective ages of the victim and the accused;
(ii) the respective mental and physical conditions of the victim (ii) the respective mental and physical conditions of the victim
and the accused; and the accused;
(iii) the atmosphere and physical setting in which the incident (iii) the atmosphere and physical setting in which the incident
was alleged to have taken place; was alleged to have taken place;
(iv) the extent to which the accused may have been in a position (iv) the extent to which the accused may have been in a position
of authority, domination or custodial control over the of authority, domination or custodial control over the
victim; victim;
(v) whether the victim was under duress. (v) whether the victim was under duress.
See Commonwealth v. Ruppert, 579 A.2d 966 (Pa. Super. (1990), appeal See Commonwealth v. Ruppert, 579 A.2d 966 (Pa. Super. (1990), appeal
denied, 527 Pa. 593, 588 A.2d 914 (1991). denied, 527 Pa. 593, 588 A.2d 914 (1991).
(b) Resistance (b) Resistance
The prosecution does not have to show that the complainant offered The prosecution does not have to show that the complainant offered
any resistance towards the actor. any resistance towards the actor.
18 Pa.Cons.stat.ann. 3107. Resistance not 18 Pa.Cons.stat.ann. 3107. Resistance not

required required
The alleged victim need not resist the actor in The alleged victim need not resist the actor in
prosecutions under this chapter: Provided, however, prosecutions under this chapter: Provided, however,
That nothing in this section shall be construed to That nothing in this section shall be construed to
prohibit a defendant from introducing evidence that the prohibit a defendant from introducing evidence that the
alleged victim consented to the conduct in question.15 alleged victim consented to the conduct in question.15
As stated in the aforesaid section, the defense may introduce evidence As stated in the aforesaid section, the defense may introduce evidence
of non-resistance to demonstrate that the alleged victim consented. As stated of non-resistance to demonstrate that the alleged victim consented. As stated
by the Pennsylvania Supreme Court in Commonwealth v. Rhodes, 510 Pa. by the Pennsylvania Supreme Court in Commonwealth v. Rhodes, 510 Pa.
537, 557 n. 14, 510 A.2d 1217, 1227 n. 14, (1986): 537, 557 n. 14, 510 A.2d 1217, 1227 n. 14, (1986):
It is not necessary to prove that the victim actually resisted in It is not necessary to prove that the victim actually resisted in
order to prove that the act of sexual intercourse was against the order to prove that the act of sexual intercourse was against the
victims will and/or without consent. Section 3107 provides victims will and/or without consent. Section 3107 provides
that the victim need not resist the actor in prosecutions that the victim need not resist the actor in prosecutions
under chapter 31 and makes it clear that lack of resistance is under chapter 31 and makes it clear that lack of resistance is
not synonymous with consent. 18 Pa. Cons. Stat. Ann. 3107. not synonymous with consent. 18 Pa. Cons. Stat. Ann. 3107.
Therefore, the prosecution does not have to prove that the alleged Therefore, the prosecution does not have to prove that the alleged
victim resisted the attack in order to prove that the sexual conduct was against victim resisted the attack in order to prove that the sexual conduct was against
the victims will or without the victims consent. See e.g. Commonwealth v. the victims will or without the victims consent. See e.g. Commonwealth v.
Smith, 863 A.2d 1172, 1176 (Pa. Super. 2004). Smith, 863 A.2d 1172, 1176 (Pa. Super. 2004).
D. Indecent Contact D. Indecent Contact
Indecent contact. Any touching of the sexual or other Indecent contact. Any touching of the sexual or other
intimate parts of the person for the purpose of arousing or intimate parts of the person for the purpose of arousing or
gratifying sexual desire, in any person. gratifying sexual desire, in any person.
(a) Genitals (a) Genitals
The plain meaning of this section is that indecent contact occurs The plain meaning of this section is that indecent contact occurs
when there is proscribed contact with the female or male genitals of either when there is proscribed contact with the female or male genitals of either
party. party.
Examples: Examples:
In re A.D., 771 A.2d 45 (Pa. Super. 2001): evidence proved that In re A.D., 771 A.2d 45 (Pa. Super. 2001): evidence proved that
juvenile touched the youthful victims vagina with his penis. juvenile touched the youthful victims vagina with his penis.
Commonwealth v. Gordon, 543 Pa. 513, 520, 673 A.2d 866, 869 Commonwealth v. Gordon, 543 Pa. 513, 520, 673 A.2d 866, 869
(1996): defendant rubbed his penis against buttocks/thigh/legs (1996): defendant rubbed his penis against buttocks/thigh/legs
of victim. of victim.
In re J.R., 648 A.2d 28, 33 (Pa. Super. 1994), appeal denied, 540 Pa. In re J.R., 648 A.2d 28, 33 (Pa. Super. 1994), appeal denied, 540 Pa.
584, 655 A.2d 515 (1995): defendant licked vaginal area of victim. 584, 655 A.2d 515 (1995): defendant licked vaginal area of victim.
(b) Other Intimate Parts (b) Other Intimate Parts
Phrase other intimate parts does not refer solely to genitalia. Phrase other intimate parts does not refer solely to genitalia.
The language of the statutory section defining indecent The language of the statutory section defining indecent
contact includes both sexual and other intimate parts contact includes both sexual and other intimate parts
as possible erogenous zones for purposes of prosecution. as possible erogenous zones for purposes of prosecution.
Therefore, the phrase other intimate parts cannot refer Therefore, the phrase other intimate parts cannot refer
solely to genitalia, as such a construction ignores the solely to genitalia, as such a construction ignores the
distinction between sexual and other intimate parts, distinction between sexual and other intimate parts,
making the latter term redundant. making the latter term redundant.
The rules of statutory construction require that full The rules of statutory construction require that full
effect be given to each provision of the statute if at all effect be given to each provision of the statute if at all
possible. 1 Pa.C.S.A. 1921, 1922. Had the Legislature possible. 1 Pa.C.S.A. 1921, 1922. Had the Legislature
wished to limit the scope of indecent contact to sexual wished to limit the scope of indecent contact to sexual
organs only, it might easily have done so. Instead, the statute organs only, it might easily have done so. Instead, the statute
is more broadly applicable, namely, to situations such as is more broadly applicable, namely, to situations such as
the present one in which the perpetrator fails to achieve his the present one in which the perpetrator fails to achieve his
objective, clearly sexual in nature, despite his best efforts objective, clearly sexual in nature, despite his best efforts
to do so. A broader reading of the statutory language is one to do so. A broader reading of the statutory language is one
sanctioned by our Supreme Court. While penal statutes are sanctioned by our Supreme Court. While penal statutes are
to be strictly construed, the courts are not required to give to be strictly construed, the courts are not required to give
the words of a criminal statute their narrowest meaning the words of a criminal statute their narrowest meaning
or disregard the evident legislative intent of the statute. or disregard the evident legislative intent of the statute.
Commonwealth v. Barud, 545 Pa. 297, 304, 681 A.2d 162, Commonwealth v. Barud, 545 Pa. 297, 304, 681 A.2d 162,
165 (1996) (citing Commonwealth v. Wooten, 519 Pa. 45, 165 (1996) (citing Commonwealth v. Wooten, 519 Pa. 45,
53, 545 A.2d 876, 880 (1988)). 53, 545 A.2d 876, 880 (1988)).
Commonwealth v. Capo, 727 A.2d 1127(Pa. Super. 1999), appeal denied, 561 Commonwealth v. Capo, 727 A.2d 1127(Pa. Super. 1999), appeal denied, 561
Pa. 667, 749 A.2d 465 (1999). In Capo, the Court found the non-consensual Pa. 667, 749 A.2d 465 (1999). In Capo, the Court found the non-consensual
attempt to kiss victim on the mouth, and rubbing of her shoulders, back and attempt to kiss victim on the mouth, and rubbing of her shoulders, back and
stomach to be sufficient indecent contact. stomach to be sufficient indecent contact.
(c) Touching (c) Touching
Not Limited to Hand: The term touching is not limited to the hand or finger; Not Limited to Hand: The term touching is not limited to the hand or finger;
rather, the courts look to any part of the defendants body or the victims body rather, the courts look to any part of the defendants body or the victims body
to determine if there has been a touching within the statute. Commonwealth to determine if there has been a touching within the statute. Commonwealth
v. Grayson, 549 A.2d 593, 596 (Pa. Super. 1988). v. Grayson, 549 A.2d 593, 596 (Pa. Super. 1988).
In accordance with the Courts decision in Grayson: In accordance with the Courts decision in Grayson:
if any part of a victims body is brought into contact with a sexual if any part of a victims body is brought into contact with a sexual
or intimate part of the defendants body, without the victims or intimate part of the defendants body, without the victims
consent, for the purpose of arousing or gratifying the sexual desire consent, for the purpose of arousing or gratifying the sexual desire
in either person, such contact constitutes indecent contact. in either person, such contact constitutes indecent contact.
if a sexual or intimate part of the victims body is brought into if a sexual or intimate part of the victims body is brought into
contact with any part of the defendants body, without the victims contact with any part of the defendants body, without the victims
consent, for the purpose of arousing or gratifying the sexual desire consent, for the purpose of arousing or gratifying the sexual desire
in either person, such contact constitutes indecent contact.16 in either person, such contact constitutes indecent contact.16
Whether the offender is touching a sexual or intimate part of the victims Whether the offender is touching a sexual or intimate part of the victims
body, or the offender is forcing the victim to touch a sexual or intimate part of body, or the offender is forcing the victim to touch a sexual or intimate part of
his body, the act of touching is not limited to the hand or finger. Clearly, it his body, the act of touching is not limited to the hand or finger. Clearly, it
does not strain logic to reason that when Hawkins kissed the victims vagina, does not strain logic to reason that when Hawkins kissed the victims vagina,
bringing his mouth into contact with a sexual part of the victims body, his bringing his mouth into contact with a sexual part of the victims body, his
conduct fell within the statutory prohibitions of the indecent assault statute. conduct fell within the statutory prohibitions of the indecent assault statute.
Commonwealth v. Hawkins, 614 A.2d 1198, 1201-1202 (Pa. Super. 1992). Commonwealth v. Hawkins, 614 A.2d 1198, 1201-1202 (Pa. Super. 1992).
No Direct Skin-to-Skin Contact Necessary: Touching occurs even though No Direct Skin-to-Skin Contact Necessary: Touching occurs even though
there is no skin-to-skin contact. See e.g., Commonwealth v. Ricco, 650 A.2d there is no skin-to-skin contact. See e.g., Commonwealth v. Ricco, 650 A.2d
1084, 1085 (Pa. Super. 1994): touching occurred when defendant placed 1084, 1085 (Pa. Super. 1994): touching occurred when defendant placed
victims hand on his genitals, even though he was wearing underwear. victims hand on his genitals, even though he was wearing underwear.
E. Serious Bodily Injury E. Serious Bodily Injury
The Sexual Offenses chapter, per 18 Pa.Cons.Stat.Ann. 3101, refers to The Sexual Offenses chapter, per 18 Pa.Cons.Stat.Ann. 3101, refers to
the definition of serious bodily injury from 18 Pa.Cons.Stat.Ann. 2301, which the definition of serious bodily injury from 18 Pa.Cons.Stat.Ann. 2301, which
states: states:
Bodily injury which: Bodily injury which:

creates a substantial risk of death or, creates a substantial risk of death or,
causes serious, permanent disfigurement, or causes serious, permanent disfigurement, or
causes protracted loss or impairment of the function of any bodily causes protracted loss or impairment of the function of any bodily
member or organ. member or organ.
In a case which also involved the charges of rape of a child and involuntary In a case which also involved the charges of rape of a child and involuntary
deviate sexual intercourse, Commonwealth v. Kerrigan, 920 A.2d 190 (Pa. Super. deviate sexual intercourse, Commonwealth v. Kerrigan, 920 A.2d 190 (Pa. Super.
2007), appeal denied, 594 Pa. 676, 932 A.2d 1286 (2007), the Superior Court held 2007), appeal denied, 594 Pa. 676, 932 A.2d 1286 (2007), the Superior Court held
that transmission of Human Papillomavirus (HPV) and genital warts satisfied the that transmission of Human Papillomavirus (HPV) and genital warts satisfied the
definition of serious bodily injury because the defendant had infected the youthful definition of serious bodily injury because the defendant had infected the youthful
victim with the virus that would afflict the victim her entire life, that she would victim with the virus that would afflict the victim her entire life, that she would
have to live with genital warts, that she risked transmitted the virus to future have to live with genital warts, that she risked transmitted the virus to future
16 Id. 16 Id.
sexual partners or children in the event she choose to give birth through the birth sexual partners or children in the event she choose to give birth through the birth
canal, and lastly because there was a strong link between HPV and cervical and canal, and lastly because there was a strong link between HPV and cervical and
other genital cancers. other genital cancers.
2. Intent 2. Intent
Where the victim suffered serious bodily injury, the Commonwealth may Where the victim suffered serious bodily injury, the Commonwealth may
establish the mens rea element of aggravated assault with evidence that the establish the mens rea element of aggravated assault with evidence that the
assailant acted either intentionally, knowingly, or recklessly. Such an inquiry into assailant acted either intentionally, knowingly, or recklessly. Such an inquiry into
intent must be determined on a case-by-case basis. Because direct evidence of intent must be determined on a case-by-case basis. Because direct evidence of
intent is often unavailable, intent to cause serious bodily injury may be shown intent is often unavailable, intent to cause serious bodily injury may be shown
by the circumstances surrounding the attack. In determining whether intent by the circumstances surrounding the attack. In determining whether intent
was proven from such circumstances, the fact finder is free to conclude the was proven from such circumstances, the fact finder is free to conclude the
accused intended the natural and probable consequences of his actions to result accused intended the natural and probable consequences of his actions to result
therefrom. Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007), therefrom. Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).
3. Types 3. Types
Substantial Risk of Death Substantial Risk of Death
Commonwealth v. Caterino, 678 A.2d 389, 392-393 (Pa. Super. Commonwealth v. Caterino, 678 A.2d 389, 392-393 (Pa. Super.
1996), appeal denied, 546 Pa. 652, 684 A.2d 555 (Pa. 1996): physical 1996), appeal denied, 546 Pa. 652, 684 A.2d 555 (Pa. 1996): physical
assault which resulted in victims broken nose and severed artery assault which resulted in victims broken nose and severed artery
constituted serious bodily injury when victim could have bled constituted serious bodily injury when victim could have bled
to death. In this case, the Superior Court gives a comprehensive to death. In this case, the Superior Court gives a comprehensive
review of cases which found serious bodily injury from different review of cases which found serious bodily injury from different
types of injuries. Note: broken nose and minor facial lacerations types of injuries. Note: broken nose and minor facial lacerations
alone were insufficient to constitute serious bodily injury. alone were insufficient to constitute serious bodily injury.
Impairment of the Function of a Bodily Member Impairment of the Function of a Bodily Member
Commonwealth v. Nichols, 692 A.2d 181, 184 (Pa. Super. 1997): Commonwealth v. Nichols, 692 A.2d 181, 184 (Pa. Super. 1997):
suffering a broken jaw and being confined to a liquid diet constitute suffering a broken jaw and being confined to a liquid diet constitute
impairment of the function of a bodily member. impairment of the function of a bodily member.
Commonwealth v. Cassidy, 668 A.2d 1143, 1146 (Pa. Super. 1995), Commonwealth v. Cassidy, 668 A.2d 1143, 1146 (Pa. Super. 1995),
alloc. denied, 545 Pa. 660, 681 A.2d 176 (1996): victims wearing of alloc. denied, 545 Pa. 660, 681 A.2d 176 (1996): victims wearing of
removable braces on her wrist and back for two months comprised removable braces on her wrist and back for two months comprised
impairment of function of a bodily member. impairment of function of a bodily member.
Commonwealth v. Phillips, 410 A.2d 832, 834 (Pa. Super. 1979): Commonwealth v. Phillips, 410 A.2d 832, 834 (Pa. Super. 1979):
gunshot wound to leg, requiring two week stay in hospital and gunshot wound to leg, requiring two week stay in hospital and
resulting in inability to walk for one month, considered serious resulting in inability to walk for one month, considered serious
bodily injury protracted impairment of function of a bodily bodily injury protracted impairment of function of a bodily
member. member.
4. Injuries that Do Not Constitute Serious Bodily Injury 4. Injuries that Do Not Constitute Serious Bodily Injury
Facial Injuries Facial Injuries
Broken nose, two black eyes and facial lacerations are not considered serious Broken nose, two black eyes and facial lacerations are not considered serious
bodily injury. Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887, bodily injury. Commonwealth v. Alexander, 477 Pa. 190, 194, 383 A.2d 887,
889 (1978). 889 (1978).
Blow to Head Blow to Head
Evidence that victim was struck on the head by a door, knocking her to the Evidence that victim was struck on the head by a door, knocking her to the
floor, but not rendering her unconscious, was deemed insufficient to prove floor, but not rendering her unconscious, was deemed insufficient to prove
serious bodily injury. Commonwealth v. Adams, 482 A.2d 583, 587 (Pa. serious bodily injury. Commonwealth v. Adams, 482 A.2d 583, 587 (Pa.
Super. 1984). Super. 1984).
F. Sexual Intercourse F. Sexual Intercourse
Sexual intercourse. In addition to its ordinary meaning, Sexual intercourse. In addition to its ordinary meaning,
includes intercourse per os or per anus, with some includes intercourse per os or per anus, with some
penetration however slight; emission is not required. penetration however slight; emission is not required.
(a) Intercourse - Ordinary Meaning (a) Intercourse - Ordinary Meaning
Sexual intercourse includes vaginal, oral and anal sex. Sexual intercourse includes vaginal, oral and anal sex.
Commonwealth v. Dorm, 971 A.2d 1284, 1286 (Pa.Super. 2009). The plain Commonwealth v. Dorm, 971 A.2d 1284, 1286 (Pa.Super. 2009). The plain
meaning of intercourse is physical sexual contact between individuals that meaning of intercourse is physical sexual contact between individuals that
involves the genitalia of at least one person . Commonwealth v. Kelley, 569 involves the genitalia of at least one person . Commonwealth v. Kelley, 569
Pa. 179, 186-187, 801 A.2d 551, 555 (2002). Pa. 179, 186-187, 801 A.2d 551, 555 (2002).
(b) Penetration Requirement (b) Penetration Requirement
The requirement is penetration, however, slight; there is no The requirement is penetration, however, slight; there is no
requirement that penetration reach the farther reaches of the female requirement that penetration reach the farther reaches of the female
genitalia.... Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa. Super. 1992), genitalia.... Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa. Super. 1992),
citing Commonwealth v. McIlvaine, 560 A.2d 155, 159 (Pa. Super. 1989); In citing Commonwealth v. McIlvaine, 560 A.2d 155, 159 (Pa. Super. 1989); In
re A.D., 771 A.2d 45, 49 (Pa. Super. 2001).17 re A.D., 771 A.2d 45, 49 (Pa. Super. 2001).17
17 See generally, What Constitutes Penetration in Prosecution for Rape or Statutory Rape, 76 A.L.R.3d 163, 3 (1977). 17 See generally, What Constitutes Penetration in Prosecution for Rape or Statutory Rape, 76 A.L.R.3d 163, 3 (1977).
[P]enetration, however slight, with the penis is necessary to [P]enetration, however slight, with the penis is necessary to
establish the element of sexual intercourse. Commonwealth establish the element of sexual intercourse. Commonwealth
v. Trimble, 419 Pa.Super. 108, 615 A.2d 48, 50 (1992). A rape v. Trimble, 419 Pa.Super. 108, 615 A.2d 48, 50 (1992). A rape
victims uncorroborated testimony to penal penetration is victims uncorroborated testimony to penal penetration is
sufficient to establish sexual intercourse and thus support a sufficient to establish sexual intercourse and thus support a
rape conviction. See Commonwealth v. Poindexter, 435 Pa. rape conviction. See Commonwealth v. Poindexter, 435 Pa.
Super. 509, 646 A.2d 1211, 1214 (1994), appeal denied, 540 Super. 509, 646 A.2d 1211, 1214 (1994), appeal denied, 540
Pa. 580, 655 A.2d 512 (1995). While circumstantial medical Pa. 580, 655 A.2d 512 (1995). While circumstantial medical
evidence is thus not necessary, see id., it may be used to evidence is thus not necessary, see id., it may be used to
prove the element of penetration. See Commonwealth v. prove the element of penetration. See Commonwealth v.
Stambaugh, 355 Pa. Super. 73, 512 A.2d 1216, 1219 (1986) Stambaugh, 355 Pa. Super. 73, 512 A.2d 1216, 1219 (1986)
(gynecologist testified that the complainants hymen was (gynecologist testified that the complainants hymen was
no longer intact); see also SEXUAL VIOLENCE BENCHBOOK, no longer intact); see also SEXUAL VIOLENCE BENCHBOOK,
2.2 (1st ed. 2007). 2.2 (1st ed. 2007).
Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008). Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008).
Oral Penetration Sufficient: Oral Penetration Sufficient:
It has been held that oral contact with the female genitalia is sufficient It has been held that oral contact with the female genitalia is sufficient
to support the penetration requirement for IDSI.18 Both deviate sexual to support the penetration requirement for IDSI.18 Both deviate sexual
intercourse and sexual intercourse include the phrase penetration, intercourse and sexual intercourse include the phrase penetration,
however slight. 18 Pa. Cons. Stat. Ann. 3101. An assailant can penetrate however slight. 18 Pa. Cons. Stat. Ann. 3101. An assailant can penetrate
by use of the mouth or tongue. Commonwealth v. Wilson, 825 A.2d 710, 714 by use of the mouth or tongue. Commonwealth v. Wilson, 825 A.2d 710, 714
(Pa. Super. 2003).19 Some form of oral contact with the genitalia is all that is (Pa. Super. 2003).19 Some form of oral contact with the genitalia is all that is
required.20 required.20
Digital Penetration: Digital Penetration:
Digital penetration of the vagina is not sexual intercourse. See Digital penetration of the vagina is not sexual intercourse. See
Commonwealth v. Kelley, 569 Pa. 179, 185-186, 801 A.2d 551, 555 (2002). Commonwealth v. Kelley, 569 Pa. 179, 185-186, 801 A.2d 551, 555 (2002).
Construing sexual intercourse according to the fair import Construing sexual intercourse according to the fair import
of its terms, digital penetration cannot be considered of its terms, digital penetration cannot be considered
intercourse within its ordinary meaning. See, e.g., intercourse within its ordinary meaning. See, e.g.,
Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444, 450 Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444, 450
(1998) (ordinary meaning of sexual intercourse in 18 (1998) (ordinary meaning of sexual intercourse in 18
Pa.C.S. 3101 is vaginal intercourse). In addition, deviate Pa.C.S. 3101 is vaginal intercourse). In addition, deviate
sexual intercourse encompasses conduct not included sexual intercourse encompasses conduct not included
within the definition of sexual intercourse, namely sexual within the definition of sexual intercourse, namely sexual
intercourse with an animal and penetration of the genitals intercourse with an animal and penetration of the genitals
or anus with a foreign object for any purpose other than or anus with a foreign object for any purpose other than
19 See also, In the Interest of J.R., 648 A.2d 28, 33 (Pa. Super. 1994) appeal denied, 540 Pa. 584, 655 A.2d 515 (1995): Deviate sexual 19 See also, In the Interest of J.R., 648 A.2d 28, 33 (Pa. Super. 1994) appeal denied, 540 Pa. 584, 655 A.2d 515 (1995): Deviate sexual
intercourse is considered to have occurred if ones mouth or tongue penetrates the vaginal area of another; Commonwealth v. L.N., 787 intercourse is considered to have occurred if ones mouth or tongue penetrates the vaginal area of another; Commonwealth v. L.N., 787
A.2d 1064, 1070 (Pa. Super. 2001), appeal denied, 569 Pa. 680, 800 A.2d 931 (2002). A.2d 1064, 1070 (Pa. Super. 2001), appeal denied, 569 Pa. 680, 800 A.2d 931 (2002).
good faith medical, hygienic or law enforcement procedures. good faith medical, hygienic or law enforcement procedures.
Digital penetration does not fall into the category of either Digital penetration does not fall into the category of either
action. Consequently, digital penetration can be classified action. Consequently, digital penetration can be classified
as sexual intercourse and deviate sexual intercourse, and as sexual intercourse and deviate sexual intercourse, and
thereby as sexual assault, only if it is intercourse per os or thereby as sexual assault, only if it is intercourse per os or
per anus. per anus.
Commonwealth v. Kelley, 569 Pa. at 186, 801 A.2d at 555. Commonwealth v. Kelley, 569 Pa. at 186, 801 A.2d at 555.
Testimony of Victim Sufficient: Testimony of Victim Sufficient:
The uncorroborated testimony of a rape victim as to penetration, if The uncorroborated testimony of a rape victim as to penetration, if
believed by the jury, is sufficient to support a rape conviction, and no medical believed by the jury, is sufficient to support a rape conviction, and no medical
testimony is needed to corroborate a victims testimony. Commonwealth v. testimony is needed to corroborate a victims testimony. Commonwealth v.
Wall, 953 A.2d 581, 584 (Pa.Super. 2008), appeal denied, 600 Pa. 733, 963 Wall, 953 A.2d 581, 584 (Pa.Super. 2008), appeal denied, 600 Pa. 733, 963
A.2d 470 (2008); Commonwealth v. Poindexter, 646 A.2d 1211, 1214 (Pa. A.2d 470 (2008); Commonwealth v. Poindexter, 646 A.2d 1211, 1214 (Pa.
Super. 1994), appeal denied, 540 Pa. 580, 655 A.2d 512 (1995). Super. 1994), appeal denied, 540 Pa. 580, 655 A.2d 512 (1995).
Penetration Proven Circumstantially: Penetration Proven Circumstantially:
Circumstantial evidence may be used to prove the element of Circumstantial evidence may be used to prove the element of
penetration. Commonwealth v. Stambaugh, 512 A.2d 1216, 1219 (Pa. Super. penetration. Commonwealth v. Stambaugh, 512 A.2d 1216, 1219 (Pa. Super.
1986) (gynecologist testified that the complainants hymen was no longer 1986) (gynecologist testified that the complainants hymen was no longer
intact). intact).
Even though the victim did not testify that there was Even though the victim did not testify that there was
penetration, it is well settled that penetration may be penetration, it is well settled that penetration may be
established through circumstantial evidence. In this established through circumstantial evidence. In this
case, the activity described by the victims sister was case, the activity described by the victims sister was
consistent only with sexual intercourse or attempted consistent only with sexual intercourse or attempted
sexual intercourse. Afterwards, the victim was bleeding sexual intercourse. Afterwards, the victim was bleeding
and prompt medical examination of the victim revealed a and prompt medical examination of the victim revealed a
recent laceration of her hymen. Under the circumstances, recent laceration of her hymen. Under the circumstances,
the jury could properly have found and obviously did find the jury could properly have found and obviously did find
that appellant achieved penetration. that appellant achieved penetration.
Commonwealth v. Usher, 371 A.2d 995, 997-998 (Pa. Super. 1977). In Commonwealth v. Usher, 371 A.2d 995, 997-998 (Pa. Super. 1977). In
Commonwealth v. Xiong, 630 A.2d 446 (Pa. Super. 1993) (en banc), appeal Commonwealth v. Xiong, 630 A.2d 446 (Pa. Super. 1993) (en banc), appeal
denied, 537 Pa. 609, 641 A.2d 309 (1994), the Superior Court ruled that a denied, 537 Pa. 609, 641 A.2d 309 (1994), the Superior Court ruled that a
notation in a hospital record that the 12 year old victims hymen was no longer notation in a hospital record that the 12 year old victims hymen was no longer
intact was admissible as circumstantial evidence of penetration, but alone intact was admissible as circumstantial evidence of penetration, but alone
insufficient to prove penetration in light of the medical testimony adduced at insufficient to prove penetration in light of the medical testimony adduced at
trial. 630 A.2d at 454. trial. 630 A.2d at 454.
(c) Emission Not Required (c) Emission Not Required
Sexual intercourse occurs with some penetration however slight; Sexual intercourse occurs with some penetration however slight;
emission is not required. Commonwealth v. Fiebiger, 570 Pa. 583, emission is not required. Commonwealth v. Fiebiger, 570 Pa. 583,
590, n.4, 810 A.2d 1233, 1237, n.4 (2002). 590, n.4, 810 A.2d 1233, 1237, n.4 (2002).
2.3 AGE OF ACCUSED 2.3 AGE OF ACCUSED
A. Age of Accused: Generally A. Age of Accused: Generally
If an accused is of eighteen years of age or older at the time of the commission If an accused is of eighteen years of age or older at the time of the commission
of the sexually violent crime, the prosecution is in the criminal division of the court of the sexually violent crime, the prosecution is in the criminal division of the court
of common pleas. However, the Juvenile Act, 42 Pa.Cons.Stat.Ann. 6301 et seq., of common pleas. However, the Juvenile Act, 42 Pa.Cons.Stat.Ann. 6301 et seq.,
encompasses the entire statutory scope of authority of the juvenile court to exercise encompasses the entire statutory scope of authority of the juvenile court to exercise
jurisdiction over matters involving individuals under the age of twenty-one who are jurisdiction over matters involving individuals under the age of twenty-one who are
alleged to have committed delinquent acts before the age of eighteen. Commonwealth v. alleged to have committed delinquent acts before the age of eighteen. Commonwealth v.
C.L., 963 A.2d 489, 491 (Pa. Super. 2008); 42 Pa.Cons.Stat.Ann. 6321 (Commencement C.L., 963 A.2d 489, 491 (Pa. Super. 2008); 42 Pa.Cons.Stat.Ann. 6321 (Commencement
of Proceedings) and 6322 (Transfer from Criminal Proceedings). A delinquent act is of Proceedings) and 6322 (Transfer from Criminal Proceedings). A delinquent act is
conduct which would constitute a crime if committed by an adult. 42 Pa.Cons.Stat.Ann. conduct which would constitute a crime if committed by an adult. 42 Pa.Cons.Stat.Ann.
6302. 6302.
In the context of the commission of a delinquent act, Section 6302 of the Juvenile In the context of the commission of a delinquent act, Section 6302 of the Juvenile
Act defines a child as not only an individual under the age of 18, but also if the accused Act defines a child as not only an individual under the age of 18, but also if the accused
is under the age of 21 years who committed an act of delinquency before reaching the is under the age of 21 years who committed an act of delinquency before reaching the
age of 18. 42 Pa.Cons.Stat.Ann. 6302. age of 18. 42 Pa.Cons.Stat.Ann. 6302.
The Juvenile Act is designed to effectuate the protection of the public by The Juvenile Act is designed to effectuate the protection of the public by
providing children who commit delinquent acts with supervision, rehabilitation, and providing children who commit delinquent acts with supervision, rehabilitation, and
care while promoting responsibility and the ability to become a productive member of care while promoting responsibility and the ability to become a productive member of
the community. See 42 Pa.Cons.Stat.Ann. 6301(b)(2). Typically, most crimes involving the community. See 42 Pa.Cons.Stat.Ann. 6301(b)(2). Typically, most crimes involving
juveniles are tried in the juvenile court of the Court of Common Pleas. juveniles are tried in the juvenile court of the Court of Common Pleas.
The Juvenile Act defines a child as follows: The Juvenile Act defines a child as follows:
Child. An individual who: Child. An individual who:
(1) is under the age of 18 years; (1) is under the age of 18 years;
(2) is under the age of 21 years who committed an act of (2) is under the age of 21 years who committed an act of
delinquency before reaching the age of 18 years; or delinquency before reaching the age of 18 years; or
(3) is under the age of 21 years and was adjudicated (3) is under the age of 21 years and was adjudicated
dependent before reaching the age of 18 years, who has dependent before reaching the age of 18 years, who has
requested the court to retain jurisdiction and who remains under requested the court to retain jurisdiction and who remains under
the jurisdiction of the court as a dependent child because the the jurisdiction of the court as a dependent child because the
court has determined that the child is: court has determined that the child is:
(i) completing secondary education or an equivalent credential; (i) completing secondary education or an equivalent credential;
(ii) enrolled in an institution which provides postsecondary or (ii) enrolled in an institution which provides postsecondary or
vocational education; vocational education;
(iii) participating in a program actively designed to promote or (iii) participating in a program actively designed to promote or
remove barriers to employment; remove barriers to employment;
(iv) employed for at least 80 hours per month; or (iv) employed for at least 80 hours per month; or
(v) incapable of doing any of the activities described in (v) incapable of doing any of the activities described in
subparagraph (i), (ii), (iii) or (iv) due to a medical or behavioral subparagraph (i), (ii), (iii) or (iv) due to a medical or behavioral
health condition, which is supported by regularly updated health condition, which is supported by regularly updated
information in the permanency plan of the child. information in the permanency plan of the child.
42 Pa.Cons.Stat.Ann. 6302. Section 6302 also defines delinquent act and delinquent 42 Pa.Cons.Stat.Ann. 6302. Section 6302 also defines delinquent act and delinquent
child. child.
1. Defendant Over 21 Years of Age When Charged But Under 18 At Time 1. Defendant Over 21 Years of Age When Charged But Under 18 At Time
Of Offense Of Offense
In Commonwealth v. Monaco, 869 A.2d 1026 (Pa. Super. 2005), appeal In Commonwealth v. Monaco, 869 A.2d 1026 (Pa. Super. 2005), appeal
denied, 584 Pa. 675, 880 A.2d 1238 (2005), the defendant was charged with denied, 584 Pa. 675, 880 A.2d 1238 (2005), the defendant was charged with
numerous sexual violence crimes for his assaults of a victim aged 10 years of numerous sexual violence crimes for his assaults of a victim aged 10 years of
age, and two victims aged 8 years of age. The defendant was under 18 years of age, and two victims aged 8 years of age. The defendant was under 18 years of
age when the assaults occurred. It was not until the defendant was twenty-two age when the assaults occurred. It was not until the defendant was twenty-two
years of age when the victims came forward and the defendant was charged. The years of age when the victims came forward and the defendant was charged. The
defendant argued that the trial court lacked jurisdiction over him because he defendant argued that the trial court lacked jurisdiction over him because he
was less than eighteen years old when the crimes were committed, and that the was less than eighteen years old when the crimes were committed, and that the
cases should have been transferred to the juvenile court. In Monaco, the Superior cases should have been transferred to the juvenile court. In Monaco, the Superior
Court affirmed the trial courts decision to handle the defendant in adult criminal Court affirmed the trial courts decision to handle the defendant in adult criminal
court. The Superior Court reasoned that the right to be treated as a juvenile is court. The Superior Court reasoned that the right to be treated as a juvenile is
statutory rather than constitutional. 869 A.2d at 1029. statutory rather than constitutional. 869 A.2d at 1029.
Instantly, Appellant was twenty-two years old at the time he Instantly, Appellant was twenty-two years old at the time he
was arrested for the relevant offenses. Accordingly, Appellant was arrested for the relevant offenses. Accordingly, Appellant
did not satisfy the statutory definition of a child at that did not satisfy the statutory definition of a child at that
time, and he no longer fell within the ambit of the juvenile time, and he no longer fell within the ambit of the juvenile
justice system. Hence, the trial court did not err in applying justice system. Hence, the trial court did not err in applying
the Anderson Courts express rationale to this case [The .21
the Anderson Courts express rationale to this case [The .21
defendants] current age places him outside of the Juvenile defendants] current age places him outside of the Juvenile
Acts definition of a child. Therefore, the Juvenile Act does not Acts definition of a child. Therefore, the Juvenile Act does not
21 Commonwealth v. Anderson, 630 A.2d 47 (Pa. Super. 1993), appeal denied, 536 Pa. 617, 637 A.2d 277 (1993). 21 Commonwealth v. Anderson, 630 A.2d 47 (Pa. Super. 1993), appeal denied, 536 Pa. 617, 637 A.2d 277 (1993).
apply to him... [and] he should be tried as an adult in the Trial apply to him... [and] he should be tried as an adult in the Trial
Division. Anderson, supra at 4950 (emphasis added). Division. Anderson, supra at 4950 (emphasis added).
Monaco, 869 A.2d at 1029-1030 (emphasis in original and original footnote Monaco, 869 A.2d at 1029-1030 (emphasis in original and original footnote
omitted). omitted).
Exception An exception to the rule announced in Commonwealth Exception An exception to the rule announced in Commonwealth
v. Anderson, 630 A.2d 47 (Pa. Super. 1993), appeal denied, 536 v. Anderson, 630 A.2d 47 (Pa. Super. 1993), appeal denied, 536
Pa. 617, 637 A.2d 277 (1993) and extended in Commonwealth v. Pa. 617, 637 A.2d 277 (1993) and extended in Commonwealth v.
Monaco, 869 A.2d 1026 (Pa. Super. 2005), appeal denied, 584 Pa. Monaco, 869 A.2d 1026 (Pa. Super. 2005), appeal denied, 584 Pa.
675, 880 A.2d 1238 (2005) exists if the defendant were under 675, 880 A.2d 1238 (2005) exists if the defendant were under
the age of fourteen years at the time the offense was committed, the age of fourteen years at the time the offense was committed,
but over 21 at the time he is charged. In an unreported case, but over 21 at the time he is charged. In an unreported case,
Commonwealth v. Leavy, 1469 EDA 2009 (Pa. Super. filed July 12, Commonwealth v. Leavy, 1469 EDA 2009 (Pa. Super. filed July 12,
2010)(unpublished memorandum), appeal granted, 609 Pa. 100, 2010)(unpublished memorandum), appeal granted, 609 Pa. 100,
15 A.3d 66 (2011), appeal dismissed as improvidently granted, --- Pa. 15 A.3d 66 (2011), appeal dismissed as improvidently granted, --- Pa.
---, 61 A.3d 189 (2013), the defendant was accused of sex offenses ---, 61 A.3d 189 (2013), the defendant was accused of sex offenses
back in 1998 when he was thirteen years old, but not charged until back in 1998 when he was thirteen years old, but not charged until
he was twenty-two years old. The trial court, which was affirmed by he was twenty-two years old. The trial court, which was affirmed by
the Superior Court, reasoned that it would have been fundamentally the Superior Court, reasoned that it would have been fundamentally
unfair to prosecute Leavy in adult court when the Juvenile Act unfair to prosecute Leavy in adult court when the Juvenile Act
contemplates prosecution in Criminal Division for certain acts done contemplates prosecution in Criminal Division for certain acts done
by juveniles when they are at least fourteen years of age, but the by juveniles when they are at least fourteen years of age, but the
law does not provide for the prosecution in Criminal Division for law does not provide for the prosecution in Criminal Division for
acts, other than murder, done by juveniles under fourteen. acts, other than murder, done by juveniles under fourteen.
B. Excluded Offenses from Jurisdiction of Juvenile Court B. Excluded Offenses from Jurisdiction of Juvenile Court
The Juvenile Act allows the prosecution of a juvenile in criminal court under two The Juvenile Act allows the prosecution of a juvenile in criminal court under two
separate circumstances. The first is a direct filing under Section 6302 of the Juvenile separate circumstances. The first is a direct filing under Section 6302 of the Juvenile
Act, 42 Pa.Cons.Stat.Ann. 6302, and the second is a discretionary transfer pursuant to Act, 42 Pa.Cons.Stat.Ann. 6302, and the second is a discretionary transfer pursuant to
Section 6355 of the Juvenile Act, 42 Pa.Cons.Stat.Ann. 6355(a). Section 6355 of the Juvenile Act, 42 Pa.Cons.Stat.Ann. 6355(a).
1. Direct File Crimes 1. Direct File Crimes
Pursuant to 42 Pa.Cons.Stat.Ann. 6322(a), when a juvenile has Pursuant to 42 Pa.Cons.Stat.Ann. 6322(a), when a juvenile has
committed a crime, which includes murder or any of the other offenses listed committed a crime, which includes murder or any of the other offenses listed
under paragraph (2)(ii) or (iii) of the definition of delinquent act in 42 Pa.Cons. under paragraph (2)(ii) or (iii) of the definition of delinquent act in 42 Pa.Cons.
Stat.Ann. 6302, the Criminal Division of the Court of Common Pleas is vested Stat.Ann. 6302, the Criminal Division of the Court of Common Pleas is vested
with jurisdiction. Similarly, 42 Pa.Cons.Stat.Ann. 6355(e) states that charges of with jurisdiction. Similarly, 42 Pa.Cons.Stat.Ann. 6355(e) states that charges of
murder or any of the other offenses listed under paragraph (2)(ii) or (iii) of the murder or any of the other offenses listed under paragraph (2)(ii) or (iii) of the
definition of delinquent act in 42 Pa.Cons.Stat.Ann. 6302, require that the definition of delinquent act in 42 Pa.Cons.Stat.Ann. 6302, require that the
offense be prosecuted in the Criminal Division. offense be prosecuted in the Criminal Division.
Under 42 Pa.Cons.Stat.Ann. 6302 (definition of Delinquent Act), Under 42 Pa.Cons.Stat.Ann. 6302 (definition of Delinquent Act),
the filing of adult criminal charges against a juvenile of age 15 years or older is the filing of adult criminal charges against a juvenile of age 15 years or older is
required for specified sexually violent felonies, as well as other violent felonies, if required for specified sexually violent felonies, as well as other violent felonies, if
a deadly weapon was used in the commission of the crime. It includes any of the a deadly weapon was used in the commission of the crime. It includes any of the
sexually violent offenses stated below: sexually violent offenses stated below:
(i) Rape as defined in 18 Pa.Cons.Stat.Ann. 3121; (i) Rape as defined in 18 Pa.Cons.Stat.Ann. 3121;
(ii) Involuntary deviate sexual intercourse as defined in 18 Pa.Cons. (ii) Involuntary deviate sexual intercourse as defined in 18 Pa.Cons.
Stat.Ann. 3123; Stat.Ann. 3123;
(iii) Aggravated indecent assault as defined in 18 Pa.Cons.Stat.Ann. (iii) Aggravated indecent assault as defined in 18 Pa.Cons.Stat.Ann.
3125; or 3125; or
(iv) An attempt, conspiracy or solicitation to commit any of these (iv) An attempt, conspiracy or solicitation to commit any of these
crimes, as provided in 18 Pa.Cons.Stat.Ann. 901, 902 and crimes, as provided in 18 Pa.Cons.Stat.Ann. 901, 902 and
903. 903.
42 Pa.Cons.Stat.Ann. 6302, Delinquent Act (2)(ii). 42 Pa.Cons.Stat.Ann. 6302, Delinquent Act (2)(ii).
Furthermore, the direct filing of adult criminal charges against a Furthermore, the direct filing of adult criminal charges against a
juvenile of age 15 years or older is required if the juvenile has been previously juvenile of age 15 years or older is required if the juvenile has been previously
adjudicated of any of the following sexually violent crimes, and is currently adjudicated of any of the following sexually violent crimes, and is currently
charged with, among other violent crimes: charged with, among other violent crimes:
(i) Rape, as defined in 18 Pa.Cons.Stat.Ann. 3121 (i) Rape, as defined in 18 Pa.Cons.Stat.Ann. 3121
(ii) Involuntary deviate sexual intercourse as defined in 18 Pa.Cons. (ii) Involuntary deviate sexual intercourse as defined in 18 Pa.Cons.
Stat.Ann. 3123 Stat.Ann. 3123
(iii) Aggravated indecent assault, as defined in 18 Pa.Cons.Stat. (iii) Aggravated indecent assault, as defined in 18 Pa.Cons.Stat.
Ann. 3125 Ann. 3125
(iv) An attempt, conspiracy or solicitation to commit any of these (iv) An attempt, conspiracy or solicitation to commit any of these
crimes, as provided in 18 Pa.Cons.Stat.Ann. 901, 902 and crimes, as provided in 18 Pa.Cons.Stat.Ann. 901, 902 and
903 903
42 Pa.Cons.Stat.Ann. 6302, Delinquent Act (2)(iii). 42 Pa.Cons.Stat.Ann. 6302, Delinquent Act (2)(iii).
If the circumstances of the offenders age, prior juvenile history and If the circumstances of the offenders age, prior juvenile history and
current offense(s) fall under Section 6302, then the offense(s) must be current offense(s) fall under Section 6302, then the offense(s) must be
prosecuted under the criminal law and procedures because the offense(s) do prosecuted under the criminal law and procedures because the offense(s) do
not qualify as delinquent acts and therefore do not fall under the Juvenile not qualify as delinquent acts and therefore do not fall under the Juvenile
Act. In such cases, the Juvenile Court lacks subject matter jurisdiction ab initio. Act. In such cases, the Juvenile Court lacks subject matter jurisdiction ab initio.
Commonwealth v. D.S., 903 A.2d 582, 586 (Pa.Super. 2006); Commonwealth Commonwealth v. D.S., 903 A.2d 582, 586 (Pa.Super. 2006); Commonwealth
v. Sanders, 814 A.2d 1248, 1250 (Pa.Super. 2003), appeal denied, 573 Pa. 704, v. Sanders, 814 A.2d 1248, 1250 (Pa.Super. 2003), appeal denied, 573 Pa. 704,
827 A.2d 430 (2003); 42 Pa.Cons.Stat.Ann. 6322(a). 827 A.2d 430 (2003); 42 Pa.Cons.Stat.Ann. 6322(a).
In a direct filing case, the juvenile has the option of requesting In a direct filing case, the juvenile has the option of requesting
treatment within the juvenile system through a transfer process known as treatment within the juvenile system through a transfer process known as
decertification. See Commonwealth v. Brown, 26 A.3d 485, 492 (Pa. Super. decertification. See Commonwealth v. Brown, 26 A.3d 485, 492 (Pa. Super.
2011); Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa.Super. 2003), 2011); Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa.Super. 2003),
appeal denied, 573 Pa. 704, 827 A.2d 430 (2003). In determining whether to appeal denied, 573 Pa. 704, 827 A.2d 430 (2003). In determining whether to
transfer such a case from criminal division to juvenile division, the child shall transfer such a case from criminal division to juvenile division, the child shall
be required to establish by a preponderance of the evidence that the transfer be required to establish by a preponderance of the evidence that the transfer
will serve the public interest. 42 Pa.Cons.Stat.Ann. 6322(a). Pursuant to will serve the public interest. 42 Pa.Cons.Stat.Ann. 6322(a). Pursuant to
6322(a) the trial court must consider the factors contained in 42 Pa.Cons. 6322(a) the trial court must consider the factors contained in 42 Pa.Cons.
Stat.Ann. 6355(a)(4)(iii) in determining whether the child has established Stat.Ann. 6355(a)(4)(iii) in determining whether the child has established
that the transfer will serve the public interest. The statutorily-set factors are that the transfer will serve the public interest. The statutorily-set factors are
listed below. listed below.
The decision whether to grant decertification will not be overturned The decision whether to grant decertification will not be overturned
absent a gross abuse of discretion. Commonwealth v. Thomas, 67 A.3d 838, absent a gross abuse of discretion. Commonwealth v. Thomas, 67 A.3d 838,
842 (Pa.Super. 2013). 842 (Pa.Super. 2013).
2. Discretionary Certification 2. Discretionary Certification
(a) Certification to Criminal Court (a) Certification to Criminal Court
The transfer of juvenile matters to an adult court for prosecution The transfer of juvenile matters to an adult court for prosecution
is governed by statute and applies to offenders age 14 years or older. The is governed by statute and applies to offenders age 14 years or older. The
Juvenile Court, pursuant to 42 Pa.Cons.Stat.Ann. 6355, must review Juvenile Court, pursuant to 42 Pa.Cons.Stat.Ann. 6355, must review
numerous factors: numerous factors:
42 Pa.Cons.stat.ann. 6355. Transfer to criminal 42 Pa.Cons.stat.ann. 6355. Transfer to criminal

proceedings proceedings
(a) General rule.--After a petition has been filed alleging (a) General rule.--After a petition has been filed alleging
delinquency based on conduct which is designated a delinquency based on conduct which is designated a
crime or public offense under the laws, including local crime or public offense under the laws, including local
ordinances, of this Commonwealth, the court before ordinances, of this Commonwealth, the court before
hearing the petition on its merits may rule that this hearing the petition on its merits may rule that this
chapter is not applicable and that the offense should be chapter is not applicable and that the offense should be
prosecuted, and transfer the offense, where appropriate, prosecuted, and transfer the offense, where appropriate,
to the division or a judge of the court assigned to conduct to the division or a judge of the court assigned to conduct
criminal proceedings, for prosecution of the offense if all criminal proceedings, for prosecution of the offense if all
of the following exist: of the following exist:
(1) The child was 14 or more years of age at the time of (1) The child was 14 or more years of age at the time of
the alleged conduct. the alleged conduct.
(2) A hearing on whether the transfer should be made is (2) A hearing on whether the transfer should be made is
held in conformity with this chapter. held in conformity with this chapter.
(3) Notice in writing of the time, place, and purpose of the (3) Notice in writing of the time, place, and purpose of the
hearing is given to the child and his parents, guardian, or hearing is given to the child and his parents, guardian, or
other custodian at least three days before the hearing. other custodian at least three days before the hearing.
(4) The court finds: (4) The court finds:
(i) that there is a prima facie case that the child (i) that there is a prima facie case that the child
committed the delinquent act alleged; committed the delinquent act alleged;
(ii) that the delinquent act would be considered a felony (ii) that the delinquent act would be considered a felony
if committed by an adult; if committed by an adult;
(iii) that there are reasonable grounds to believe that (iii) that there are reasonable grounds to believe that
the public interest is served by the transfer of the case the public interest is served by the transfer of the case
for criminal prosecution. In determining whether the for criminal prosecution. In determining whether the
public interest can be served, the court shall consider public interest can be served, the court shall consider
the following factors: the following factors:
(A) the impact of the offense on the victim or victims; (A) the impact of the offense on the victim or victims;
(B) the impact of the offense on the community; (B) the impact of the offense on the community;
(C) the threat to the safety of the public or any (C) the threat to the safety of the public or any
individual posed by the child; individual posed by the child;
(D) the nature and circumstances of the offense (D) the nature and circumstances of the offense
allegedly committed by the child; allegedly committed by the child;
(E) the degree of the childs culpability; (E) the degree of the childs culpability;
(F) the adequacy and duration of dispositional (F) the adequacy and duration of dispositional
alternatives available under this chapter and in the alternatives available under this chapter and in the
adult criminal justice system; and adult criminal justice system; and
(G) whether the child is amenable to treatment, (G) whether the child is amenable to treatment,
supervision or rehabilitation as a juvenile by supervision or rehabilitation as a juvenile by
considering the following factors: considering the following factors:
(I) age; (I) age;
(II) mental capacity; (II) mental capacity;
(III) maturity; (III) maturity;
(IV) the degree of criminal sophistication exhibited (IV) the degree of criminal sophistication exhibited
by the child; by the child;
(V) previous records, if any; (V) previous records, if any;
(VI) the nature and extent of any prior delinquent (VI) the nature and extent of any prior delinquent
history, including the success or failure of any history, including the success or failure of any
previous attempts by the juvenile court to rehabilitate previous attempts by the juvenile court to rehabilitate
the child; the child;
(VII) whether the child can be rehabilitated prior to (VII) whether the child can be rehabilitated prior to
the expiration of the juvenile court jurisdiction; the expiration of the juvenile court jurisdiction;
(VIII) probation or institutional reports, if any; (VIII) probation or institutional reports, if any;
(IX) any other relevant factors; and (IX) any other relevant factors; and
(iv) that there are reasonable grounds to believe that (iv) that there are reasonable grounds to believe that
the child is not committable to an institution for the the child is not committable to an institution for the
mentally retarded or mentally ill. mentally retarded or mentally ill.
42 Pa.Cons.Stat.Ann. 6355. 42 Pa.Cons.Stat.Ann. 6355.
The standard of review following an appeal by a decision of the juvenile The standard of review following an appeal by a decision of the juvenile
court in the certification process is: court in the certification process is:
[T]he ultimate decision of whether to certify a minor [T]he ultimate decision of whether to certify a minor
to stand trial as an adult is within the sole discretion of to stand trial as an adult is within the sole discretion of
a juvenile court. An appellate court may not disturb a a juvenile court. An appellate court may not disturb a
certification ruling unless the juvenile court committed certification ruling unless the juvenile court committed
an abuse of discretion. The existence of facts in the record an abuse of discretion. The existence of facts in the record
that would support a contrary result does not demonstrate that would support a contrary result does not demonstrate
an abuse of discretion. Rather, the court rendering the an abuse of discretion. Rather, the court rendering the
adult certification decision must have misapplied the law, adult certification decision must have misapplied the law,
exercised unreasonable judgment, or based its decision on exercised unreasonable judgment, or based its decision on
ill will, bias, or prejudice. ill will, bias, or prejudice.
Commonwealth v. In re E.R., 606 Pa. 73, 78-79, 995 A.2d 326, 329 (2010). Commonwealth v. In re E.R., 606 Pa. 73, 78-79, 995 A.2d 326, 329 (2010).
2.4 AGE OF VICTIM 2.4 AGE OF VICTIM
A. Offenses Against Children A. Offenses Against Children
The General Assembly of Pennsylvania has adopted numerous laws The General Assembly of Pennsylvania has adopted numerous laws
specifically designed to protect children from sexual and physical abuse. These specifically designed to protect children from sexual and physical abuse. These
laws are discussed in detail in Chapter 4, Offenses Against Children. Children laws are discussed in detail in Chapter 4, Offenses Against Children. Children
are also protected by many laws adopted to combat sexual violence which also are also protected by many laws adopted to combat sexual violence which also
cover adult victims. These crimes are listed in Chapter 3, Crimes of Sexual cover adult victims. These crimes are listed in Chapter 3, Crimes of Sexual
Violence. Violence.
Crimes specifically adopted to protect children include: Crimes specifically adopted to protect children include:
Luring a Child into a Motor Vehicle, 18 Pa.Cons.Stat.Ann. 2910, Luring a Child into a Motor Vehicle, 18 Pa.Cons.Stat.Ann. 2910,
discussed in Chapter 4, Section 4.2 discussed in Chapter 4, Section 4.2
Endangering Welfare of Children, 18 Pa.Cons.Stat.Ann. 4304, Endangering Welfare of Children, 18 Pa.Cons.Stat.Ann. 4304,
discussed in Chapter 4, Section 4.3 discussed in Chapter 4, Section 4.3
Corruption of Minors, 18 Pa.Cons.Stat.Ann. 6301, discussed in Chapter Corruption of Minors, 18 Pa.Cons.Stat.Ann. 6301, discussed in Chapter
4, Section 4.4 4, Section 4.4
Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312, discussed in Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312, discussed in
Chapter 4, Section 4.5 Chapter 4, Section 4.5
Unlawful Contact with Minor, 18 Pa.Cons.Stat.Ann. 6318 , discussed Unlawful Contact with Minor, 18 Pa.Cons.Stat.Ann. 6318 , discussed
in Chapter 4, Section 4.6 in Chapter 4, Section 4.6
Sexual Exploitation of Children, 18 Pa.Cons.Stat.Ann. 6320, discussed Sexual Exploitation of Children, 18 Pa.Cons.Stat.Ann. 6320, discussed
in Chapter 4, Section 4.7 in Chapter 4, Section 4.7
Internet Child Pornography, 18 Pa.Cons.Stat.Ann. 7621-7630, Internet Child Pornography, 18 Pa.Cons.Stat.Ann. 7621-7630,
discussed in Chapter 4, Section 4.8 (Act Declared Unconstitutional) discussed in Chapter 4, Section 4.8 (Act Declared Unconstitutional)
Obscene Materials, 18 Pa.Cons.Stat.Ann. 5903, discussed in Chapter 4, Obscene Materials, 18 Pa.Cons.Stat.Ann. 5903, discussed in Chapter 4,
Section 4.9 Section 4.9
Transmission of Sexually Explicit Images by Minor, 18 Pa.Cons.Stat. Transmission of Sexually Explicit Images by Minor, 18 Pa.Cons.Stat.
Ann. 6321, discussed in Chapter 4, Section 4.10 Ann. 6321, discussed in Chapter 4, Section 4.10
Sexual Assault by Sports Official, Volunteer or Employee of Nonprofit Sexual Assault by Sports Official, Volunteer or Employee of Nonprofit
Association, 18 Pa.Cons.Stat.Ann. 3124.3, discussed in Chapter 4, Association, 18 Pa.Cons.Stat.Ann. 3124.3, discussed in Chapter 4,
Section 4.11. Section 4.11.
Chapter 4, Section 4.12, also addresses cases where children are the intended victims of Chapter 4, Section 4.12, also addresses cases where children are the intended victims of
an attempt, conspiracy or solicitation involving sexual violence. an attempt, conspiracy or solicitation involving sexual violence.
Many crimes of sexual violence are tailored, in special sections, for circumstances Many crimes of sexual violence are tailored, in special sections, for circumstances
when the victim is under 18 years of age. These include: when the victim is under 18 years of age. These include:
Rape of a Child, 18 Pa.Cons.Stat.Ann. 3121(c), discussed in Chapter 3, Rape of a Child, 18 Pa.Cons.Stat.Ann. 3121(c), discussed in Chapter 3,
Section 3.2(F), in which the elements are: Section 3.2(F), in which the elements are:
Engaging in sexual intercourse with a child; and Engaging in sexual intercourse with a child; and
The child is less than 13 years of age. The child is less than 13 years of age.
Rape of a Child Resulting in Serious Bodily Injury, 18 Pa.Cons.Stat. Rape of a Child Resulting in Serious Bodily Injury, 18 Pa.Cons.Stat.
Ann. 3121(d), discussed in Chapter 3, Section 3.2(G), in which the Ann. 3121(d), discussed in Chapter 3, Section 3.2(G), in which the
elements are: elements are:
Engaging in sexual intercourse with a child; and Engaging in sexual intercourse with a child; and
The child is less than 13 years of age; and The child is less than 13 years of age; and
The child suffers serious bodily injury in the course of the offense. The child suffers serious bodily injury in the course of the offense.
Statutory Sexual Assault, 18 Pa.Cons.Stat.Ann. 3122(a), discussed in Statutory Sexual Assault, 18 Pa.Cons.Stat.Ann. 3122(a), discussed in
Chapter 3, Section 3.3(A), in which the elements are: Chapter 3, Section 3.3(A), in which the elements are:
Engaging in sexual intercourse with a complainant; and Engaging in sexual intercourse with a complainant; and
The complainant is not married to the defendant; The complainant is not married to the defendant;
In one of the following circumstances: In one of the following circumstances:
i. The complainant is under 16 years of age; and i. The complainant is under 16 years of age; and
ii. The defendant is four years older but less than eight years ii. The defendant is four years older but less than eight years
older than the complainant; or older than the complainant; or
iii. The defendant is eight years older but less than 11 years iii. The defendant is eight years older but less than 11 years
older than the complainant older than the complainant
Statutory Sexual Assault-Older Defendant, 18 Pa.Cons.Stat.Ann. Statutory Sexual Assault-Older Defendant, 18 Pa.Cons.Stat.Ann.
3122(b), discussed in Chapter 3, Section 3.3(B), in which the elements 3122(b), discussed in Chapter 3, Section 3.3(B), in which the elements
are: are:
Engaging in sexual intercourse with a complainant; and Engaging in sexual intercourse with a complainant; and
The complainant is not married to the defendant; and The complainant is not married to the defendant; and
The complainant is under the age of 16 years; and The complainant is under the age of 16 years; and
The Defendant is 11 or more years older than the complainant. The Defendant is 11 or more years older than the complainant.
Involuntary Deviate Sexual Intercourse with a Child under Age 16, 18 Involuntary Deviate Sexual Intercourse with a Child under Age 16, 18
Pa.Cons.Stat.Ann. 3123(a)(7), discussed in Chapter 3, Section 3.4(F), in Pa.Cons.Stat.Ann. 3123(a)(7), discussed in Chapter 3, Section 3.4(F), in
which the elements are: which the elements are:
Engaging in deviate sexual intercourse with a complainant; Engaging in deviate sexual intercourse with a complainant;
When the complainant is less than 16 years of age and the defendant When the complainant is less than 16 years of age and the defendant
is four or more years older than the complainant; and is four or more years older than the complainant; and
the complainant and defendant are not married to each other the complainant and defendant are not married to each other
Involuntary Deviate Sexual Intercourse with a Child under Age 13, Involuntary Deviate Sexual Intercourse with a Child under Age 13,
18 Pa.Cons.Stat.Ann. 3123(b), discussed in Chapter 3, Section 3.4(G), in 18 Pa.Cons.Stat.Ann. 3123(b), discussed in Chapter 3, Section 3.4(G), in
which the elements are: which the elements are:
When the complainant is less than 13 years of age. When the complainant is less than 13 years of age.
Involuntary Deviate Sexual Intercourse with a Child under Age 13 Involuntary Deviate Sexual Intercourse with a Child under Age 13
and Resulting in Serious Bodily Injury, 18 Pa.Cons.Stat.Ann. 3123(c), and Resulting in Serious Bodily Injury, 18 Pa.Cons.Stat.Ann. 3123(c),
discussed in Chapter 3, Section 3.4(H), in which the elements are: discussed in Chapter 3, Section 3.4(H), in which the elements are:
When the complainant is less than 13 years of age; and When the complainant is less than 13 years of age; and
The complainant suffers serious bodily injury in the course of the The complainant suffers serious bodily injury in the course of the
offense. offense.
Institutional Sexual Assault of a Minor, 18 Pa.Cons.Stat.Ann. Institutional Sexual Assault of a Minor, 18 Pa.Cons.Stat.Ann.
3124.2(a.1), discussed in Chapter 3, Section 3.6(B), in which the elements 3124.2(a.1), discussed in Chapter 3, Section 3.6(B), in which the elements
are: are:
The defendant is an employee or agent of any of the following: The defendant is an employee or agent of any of the following:
a) the Department of Corrections, a) the Department of Corrections,
b) county correctional authority, b) county correctional authority,
c) youth development center, c) youth development center,
d) youth forestry camp, d) youth forestry camp,
e) state or county juvenile detention facility, e) state or county juvenile detention facility,
f) other licensed residential facility serving children and f) other licensed residential facility serving children and
youth, or youth, or
g) mental health or mental retardation facility or institution, and g) mental health or mental retardation facility or institution, and
The defendant engages in sexual intercourse, deviate sexual The defendant engages in sexual intercourse, deviate sexual
intercourse or indecent contact with an inmate, detainee, patient or intercourse or indecent contact with an inmate, detainee, patient or
resident; and resident; and
The defendant acts intentionally, knowingly or recklessly as to the The defendant acts intentionally, knowingly or recklessly as to the
status of their sexual partner as an inmate, detainee, patient, or resident, status of their sexual partner as an inmate, detainee, patient, or resident,
and and
The inmate, detainee, patient, or resident is under 18 years of age. The inmate, detainee, patient, or resident is under 18 years of age.
Institutional Sexual Assault at a School, 18 Pa.Cons.Stat.Ann. Institutional Sexual Assault at a School, 18 Pa.Cons.Stat.Ann.
3124.2(a.2), discussed in Chapter 3, Section 3.6(C), in which the elements 3124.2(a.2), discussed in Chapter 3, Section 3.6(C), in which the elements
are: are:
The defendant is a volunteer or an employee of a school, or The defendant is a volunteer or an employee of a school, or
Any other person who has direct contact with a student at a school; Any other person who has direct contact with a student at a school;
and and
intercourse or indecent contact with a student of the school. intercourse or indecent contact with a student of the school.
Institutional Sexual Assault Child Care, 18 Pa.Cons.Stat.Ann. Institutional Sexual Assault Child Care, 18 Pa.Cons.Stat.Ann.
3124.2(a.3), discussed in Chapter 3, Section 3.6(D), in which the elements 3124.2(a.3), discussed in Chapter 3, Section 3.6(D), in which the elements
are: are:
The defendant is a volunteer or an employee of a center for children; The defendant is a volunteer or an employee of a center for children;
and and
intercourse or indecent contact with a child who is receiving services at intercourse or indecent contact with a child who is receiving services at
the center the center
Aggravated Indecent Assault of a Child, 18 Pa.Cons.Stat.Ann. 3125(b), Aggravated Indecent Assault of a Child, 18 Pa.Cons.Stat.Ann. 3125(b),
discussed in Chapter 3, Section 3.7(B), in which the elements are: discussed in Chapter 3, Section 3.7(B), in which the elements are:
A violation of subsections (a)(1)-(6) of the Aggravated Indecent A violation of subsections (a)(1)-(6) of the Aggravated Indecent
assault statute, 3125(a) and assault statute, 3125(a) and
The complainant is under 13 years old. The complainant is under 13 years old.
Indecent Assault of a Child Under 13 Years of Age, 18 Pa.Cons.Stat. Indecent Assault of a Child Under 13 Years of Age, 18 Pa.Cons.Stat.
Ann. 3126(a)(7), discussed in Chapter 3, Section 3.8(G), in which the Ann. 3126(a)(7), discussed in Chapter 3, Section 3.8(G), in which the
The defendant has indecent contact with the complainant, or The defendant has indecent contact with the complainant, or
The defendant causes the complainant to have indecent contact with The defendant causes the complainant to have indecent contact with
the defendant, or the defendant, or
The defendant intentionally causes the complainant to come into The defendant intentionally causes the complainant to come into
contact with seminal fluid, urine or feces for the purpose of arousing contact with seminal fluid, urine or feces for the purpose of arousing
sexual desire in the defendant or the complainant; and sexual desire in the defendant or the complainant; and
The complainant is less than 13 years of age. The complainant is less than 13 years of age.
Indecent Assault of a Child Under 16 Years of Age, 18 Pa.Cons.Stat. Indecent Assault of a Child Under 16 Years of Age, 18 Pa.Cons.Stat.
Ann. 3126(a)(8), discussed in Chapter 3, Section 3.8(H), in which the Ann. 3126(a)(8), discussed in Chapter 3, Section 3.8(H), in which the

The defendant causes the complainant to have indecent contact with The defendant causes the complainant to have indecent contact with
the defendant, or the defendant, or
The defendant intentionally causes the complainant to come into The defendant intentionally causes the complainant to come into
contact with seminal fluid, urine or feces for the purpose of arousing contact with seminal fluid, urine or feces for the purpose of arousing
sexual desire in the defendant or the complainant; and sexual desire in the defendant or the complainant; and
The complainant is less than 16 years of age, and The complainant is less than 16 years of age, and
The defendant is four or more years older than the complainant and The defendant is four or more years older than the complainant and
The complainant and the defendant are not married to each other. The complainant and the defendant are not married to each other.
Incest of a Minor, 18 Pa.Cons.Stat.Ann. 4302(b), discussed in Chapter Incest of a Minor, 18 Pa.Cons.Stat.Ann. 4302(b), discussed in Chapter
3, Section 3.10(B), in which the elements are: 3, Section 3.10(B), in which the elements are:
The defendant knowingly either: The defendant knowingly either:
a) marries, a) marries,
b) cohabits, or b) cohabits, or
c) has sexual intercourse with c) has sexual intercourse with
Any of the following if they are under the age of 13 or between 13 and Any of the following if they are under the age of 13 or between 13 and
18 years of age and the defendant is four or more years older: 18 years of age and the defendant is four or more years older:
a) an ancestor of the whole or half blood, a) an ancestor of the whole or half blood,
b) a descendant of the whole or half blood, b) a descendant of the whole or half blood,
c) a brother or sister of the whole or half blood, c) a brother or sister of the whole or half blood,
d) an uncle or aunt of the whole blood, or d) an uncle or aunt of the whole blood, or
e) a nephew or niece of the whole blood. e) a nephew or niece of the whole blood.
Additionally, many crimes of sexual violence have enhanced gradings and Additionally, many crimes of sexual violence have enhanced gradings and
penalties when the victim is a minor. penalties when the victim is a minor.
B. Prohibition of Disclosure of Names of Minors in Physical or Sexual Abuse B. Prohibition of Disclosure of Names of Minors in Physical or Sexual Abuse
Cases Cases
Subchapter D, Child Victims and Witnesses, of Chapter 59 of the Judicial Code, Subchapter D, Child Victims and Witnesses, of Chapter 59 of the Judicial Code,
provides for confidentiality of victims of physical or sexual abuse when they are under provides for confidentiality of victims of physical or sexual abuse when they are under
18 years of age when they are victimized. Under this law, the names of such victims or 18 years of age when they are victimized. Under this law, the names of such victims or
material witnesses may not be disclosed to the public by the courts, and any records material witnesses may not be disclosed to the public by the courts, and any records
revealing the name of the minor victim or witnesses may be open to public inspection. revealing the name of the minor victim or witnesses may be open to public inspection.
The law applies to any prosecution involving a minor victim, regardless of the date of the The law applies to any prosecution involving a minor victim, regardless of the date of the
commencement of the prosecution.22 commencement of the prosecution.22
The law defines a minor as: The law defines a minor as:
An individual who, at the time of the commission of the offense An individual who, at the time of the commission of the offense
involving sexual or physical abuse, is under 18 years of age.23 involving sexual or physical abuse, is under 18 years of age.23
22 42 Pa.Cons.stat.ann. 5988(a.1). 22 42 Pa.Cons.stat.ann. 5988(a.1).

The victim of a sexual offense, who is 18 years old or older at the time of the commencement The victim of a sexual offense, who is 18 years old or older at the time of the commencement
of the prosecution, but who was a minor at the time the offense was committed, may of the prosecution, but who was a minor at the time the offense was committed, may
waive the confidentiality required under this law and permit the court to release the waive the confidentiality required under this law and permit the court to release the
name of the minor victim. 42 Pa.Cons.Stat.Ann. 5988(a.2). name of the minor victim. 42 Pa.Cons.Stat.Ann. 5988(a.2).
Chapter 3 Chapter 3
CRIMES OF SEXUAL CRIMES OF SEXUAL

VIOLENCE VIOLENCE
IN PENNSYLVANIA IN PENNSYLVANIA
Crimes of Sexual Violence in Pennsylvania Crimes of Sexual Violence in Pennsylvania
Chapter Three Table of Contents Chapter Three Table of Contents

3.1 CHAPTER OVERVIEW ......................................................................................... 7 3.1 CHAPTER OVERVIEW ......................................................................................... 7
3.2 RAPE ....................................................................................................................... 8 3.2 RAPE ....................................................................................................................... 8
Types of Rape: Statutory Elements ........................................................................................ 8 Types of Rape: Statutory Elements ........................................................................................ 8
A. Rape By Forcible Compulsion .................................................................................... 9 A. Rape By Forcible Compulsion .................................................................................... 9
1. Statutory Citation and Elements ........................................................................ 9 1. Statutory Citation and Elements ........................................................................ 9
2. Forcible Compulsion ................................................................................................ 9 2. Forcible Compulsion ................................................................................................ 9
(a) Type of Force ............................................................................................... 9 (a) Type of Force ............................................................................................... 9
(b) Degree of Force .......................................................................................... 9 (b) Degree of Force .......................................................................................... 9
3. Consent ........................................................................................................ 10 3. Consent ........................................................................................................ 10
(a) Mistake of Fact ......................................................................................... 10 (a) Mistake of Fact ......................................................................................... 10
(b) Statement of Non-consent ................................................................. 10 (b) Statement of Non-consent ................................................................. 10
4. Rape Trauma Syndrome ...................................................................................... 10 4. Rape Trauma Syndrome ...................................................................................... 10
B. Rape by Threat of Forcible Compulsion ............................................................... 11 B. Rape by Threat of Forcible Compulsion ............................................................... 11
1. Statutory Citation and Elements ...................................................................... 11 1. Statutory Citation and Elements ...................................................................... 11
2. Forcible Compulsion.............................................................................................. 11 2. Forcible Compulsion.............................................................................................. 11
3. Objective Standard Utilized ................................................................................ 11 3. Objective Standard Utilized ................................................................................ 11
4. Verbal Threats Sufficient ..................................................................................... 11 4. Verbal Threats Sufficient ..................................................................................... 11
C. Rape When the Complainant is Unconscious or Unaware ........................... 12 C. Rape When the Complainant is Unconscious or Unaware ........................... 12
2. Purpose of Section.................................................................................................. 12 2. Purpose of Section.................................................................................................. 12
3. Sleeping Victim ........................................................................................................ 12 3. Sleeping Victim ........................................................................................................ 12
4. Unconscious Victim ............................................................................................... 12 4. Unconscious Victim ............................................................................................... 12
5. Constructive Unconsciousness ......................................................................... 12 5. Constructive Unconsciousness ......................................................................... 12
D. Rape When the Assailant Has Impaired the D. Rape When the Assailant Has Impaired the
Complainants Power to Resist ................................................................................ 13 Complainants Power to Resist ................................................................................ 13
2. Additional Penalty .................................................................................................. 13 2. Additional Penalty .................................................................................................. 13
E. Rape When a Mental Disability Renders the E. Rape When a Mental Disability Renders the
Complainant Incapable of Consent ........................................................................ 13 Complainant Incapable of Consent ........................................................................ 13
2. Commonwealths Burden of Proof ................................................................. 13 2. Commonwealths Burden of Proof ................................................................. 13
F. Rape of a Child ................................................................................................................ 13 F. Rape of a Child ................................................................................................................ 13
2. Mistake as to Age .................................................................................................... 14 2. Mistake as to Age .................................................................................................... 14
3. Enhanced Penalty ................................................................................................... 14 3. Enhanced Penalty ................................................................................................... 14
G. Rape of a Child Resulting in Serious Bodily Injury .......................................... 14 G. Rape of a Child Resulting in Serious Bodily Injury .......................................... 14
3. Serious Bodily Injury............................................................................................. 15 3. Serious Bodily Injury............................................................................................. 15
4. Enhanced Penalty .................................................................................................. 15 4. Enhanced Penalty .................................................................................................. 15
H. Key Provisions of Rape Statute ................................................................................ 15 H. Key Provisions of Rape Statute ................................................................................ 15
1. Fundamental Nature of Rape ............................................................................. 15 1. Fundamental Nature of Rape ............................................................................. 15
2. Penetration Necessary.......................................................................................... 16 2. Penetration Necessary.......................................................................................... 16
3. Time of Offense ........................................................................................................ 16 3. Time of Offense ........................................................................................................ 16
4. No Resistance Necessary ..................................................................................... 16 4. No Resistance Necessary ..................................................................................... 16
I. Penalties ............................................................................................................................ 16 I. Penalties ............................................................................................................................ 16
1. Rape ........................................................................................................ 16 1. Rape ........................................................................................................ 16
2. Rape of a Child ........................................................................................................ 16 2. Rape of a Child ........................................................................................................ 16
3. Rape of a Child Resulting in Serious Bodily Injury .................................. 17 3. Rape of a Child Resulting in Serious Bodily Injury .................................. 17
4. Trafficking of Persons ........................................................................................... 17 4. Trafficking of Persons ........................................................................................... 17
3.3 STATUTORY SEXUAL ASSAULT ....................................................................... 17 3.3 STATUTORY SEXUAL ASSAULT ....................................................................... 17
Types of Statutory Sexual Assault: Statutory Elements............................................... 17 Types of Statutory Sexual Assault: Statutory Elements............................................... 17
A. Statutory Sexual Assault ............................................................................................ 18 A. Statutory Sexual Assault ............................................................................................ 18
2. Penalty .. ........................................................................................................... 18 2. Penalty .. ........................................................................................................... 18
B. Statutory Sexual Assault Older Defendant ...................................................... 18 B. Statutory Sexual Assault Older Defendant ...................................................... 18
2. Penalty .. ........................................................................................................... 18 2. Penalty .. ........................................................................................................... 18
C. Key Provisions of Statutory Sexual Assault ........................................................ 18 C. Key Provisions of Statutory Sexual Assault ........................................................ 18
1. Consent Not a Defense .......................................................................................... 18 1. Consent Not a Defense .......................................................................................... 18
2. Mistake of Age .......................................................................................................... 19 2. Mistake of Age .......................................................................................................... 19
3.4 INVOLUNTARY DEVIATE SEXUAL INTERCOURSE .................................... 20 3.4 INVOLUNTARY DEVIATE SEXUAL INTERCOURSE .................................... 20
Types of IDSI: Statutory Elements ........................................................................................ 20 Types of IDSI: Statutory Elements ........................................................................................ 20
A. IDSI by Forcible Compulsion .................................................................................... 21 A. IDSI by Forcible Compulsion .................................................................................... 21
2. Forcible Compulsion.............................................................................................. 21 2. Forcible Compulsion.............................................................................................. 21
B. IDSI by Threat of Forcible Compulsion ................................................................ 21 B. IDSI by Threat of Forcible Compulsion ................................................................ 21
2. Objective Standard ................................................................................................. 22 2. Objective Standard ................................................................................................. 22

3. Totality of the Circumstances .......................................................................... 22 3. Totality of the Circumstances .......................................................................... 22
C. IDSI: Complainant is Unconscious or Unaware ................................................ 23 C. IDSI: Complainant is Unconscious or Unaware ................................................ 23
2. Lack of Consent........................................................................................................ 23 2. Lack of Consent........................................................................................................ 23
D. IDSI: Assailant Has Impaired the Complainants Power to Resist ............ 23 D. IDSI: Assailant Has Impaired the Complainants Power to Resist ............ 23
E. IDSI: Mental Disability Renders the Complainant Incapable of Consent 23 E. IDSI: Mental Disability Renders the Complainant Incapable of Consent 23
2. Intent............................................................................................................................ 24 2. Intent............................................................................................................................ 24
F. IDSI with a Child Under 16 ........................................................................................ 24 F. IDSI with a Child Under 16 ........................................................................................ 24
G. IDSI with a Child Under 13 ........................................................................................ 24 G. IDSI with a Child Under 13 ........................................................................................ 24
H. IDSI with a Child Under 13 Resulting in Serious Bodily Injury ................. 25 H. IDSI with a Child Under 13 Resulting in Serious Bodily Injury ................. 25
2. Serious Bodily Injury............................................................................................. 25 2. Serious Bodily Injury............................................................................................. 25
I. Penalties ............................................................................................................................ 26 I. Penalties ............................................................................................................................ 26
1. Involuntary Deviate Sexual Intercourse ....................................................... 26 1. Involuntary Deviate Sexual Intercourse ....................................................... 26
2. IDSI with a Child Under Age 13 ........................................................................ 26 2. IDSI with a Child Under Age 13 ........................................................................ 26
3. IDSI with a Child Under Age 13 Resulting in Serious Bodily Injury.. 26 3. IDSI with a Child Under Age 13 Resulting in Serious Bodily Injury.. 26
4. Multiple Counts of IDSI ....................................................................................... 26 4. Multiple Counts of IDSI ....................................................................................... 26
5. Trafficking of Persons ........................................................................................... 26 5. Trafficking of Persons ........................................................................................... 26
3.5 SEXUAL ASSAULT ............................................................................................... 27 3.5 SEXUAL ASSAULT ............................................................................................... 27
A. Statutory Citation and Elements ............................................................................. 27 A. Statutory Citation and Elements ............................................................................. 27
B. History ............................................................................................................................... 27 B. History ............................................................................................................................... 27
C. Evidence ............................................................................................................................ 27 C. Evidence ............................................................................................................................ 27
D. No Requirement of Forcible Compulsion......................................................... 27 D. No Requirement of Forcible Compulsion......................................................... 27
E. Penalty ................................................................................................................................ 28 E. Penalty ................................................................................................................................ 28
3.6 INSTITUTIONAL SEXUAL ASSAULT .............................................................. 28 3.6 INSTITUTIONAL SEXUAL ASSAULT .............................................................. 28
A. Institutional Sexual Assault....................................................................................... 28 A. Institutional Sexual Assault....................................................................................... 28
2. Intent ........................................................................................................................... 28 2. Intent ........................................................................................................................... 28
3. Penalty ....................................................................................................................... 28 3. Penalty ....................................................................................................................... 28

B. Institutional Sexual Assault of a Minor ................................................................ 29 B. Institutional Sexual Assault of a Minor ................................................................ 29
2. Intent ............................................................................................................................ 29 2. Intent ............................................................................................................................ 29
3. Penalty ......................................................................................................................... 29 3. Penalty ......................................................................................................................... 29
C. Institutional Sexual Assault at a School ............................................................... 29 C. Institutional Sexual Assault at a School ............................................................... 29
2. Penalty ......................................................................................................................... 29 2. Penalty ......................................................................................................................... 29
D. Institutional Sexual Assault Child Care ............................................................. 30 D. Institutional Sexual Assault Child Care ............................................................. 30
2. Penalty ........................................................................................................................ 30 2. Penalty ........................................................................................................................ 30
3.7 AGGRAVATED INDECENT ASSAULT .............................................................. 30 3.7 AGGRAVATED INDECENT ASSAULT .............................................................. 30
A. Aggravated Indecent Assault ................................................................................... 30 A. Aggravated Indecent Assault ................................................................................... 30
2. Digital Penetration ............................................................................................... 31 2. Digital Penetration ............................................................................................... 31
3. Victims Testimony ............................................................................................... 31 3. Victims Testimony ............................................................................................... 31
4. Penalty ....................................................................................................................... 31 4. Penalty ....................................................................................................................... 31
B. Aggravated Indecent Assault of a Child................................................................ 31 B. Aggravated Indecent Assault of a Child................................................................ 31
2. Penalty ........................................................................................................................ 31 2. Penalty ........................................................................................................................ 31
3.8 INDECENT ASSAULT .......................................................................................... 31 3.8 INDECENT ASSAULT .......................................................................................... 31
Types of Indecent Assault: Statutory Elements .............................................................. 31 Types of Indecent Assault: Statutory Elements .............................................................. 31
A. Indecent Assault............................................................................................................. 32 A. Indecent Assault............................................................................................................. 32
1. Statutory Citation and Elements ..................................................................... 32 1. Statutory Citation and Elements ..................................................................... 32
2. Penalty ....................................................................................................................... 32 2. Penalty ....................................................................................................................... 32
B. Indecent Assault by Forcible Compulsion........................................................... 32 B. Indecent Assault by Forcible Compulsion........................................................... 32
2. Penalty ....................................................................................................................... 33 2. Penalty ....................................................................................................................... 33
C. Indecent Assault by Threat of Forcible Compulsion....................................... 33 C. Indecent Assault by Threat of Forcible Compulsion....................................... 33
2. Penalty ....................................................................................................................... 33 2. Penalty ....................................................................................................................... 33
D. Indecent Assault When the Complainant is Unconscious or Unaware... 33 D. Indecent Assault When the Complainant is Unconscious or Unaware... 33
2. Penalty ....................................................................................................................... 34 2. Penalty ....................................................................................................................... 34
E. Indecent Assault When the Assailant Has Impaired E. Indecent Assault When the Assailant Has Impaired
the Complainants Power to Resist ....................................................................... 34 the Complainants Power to Resist ....................................................................... 34
2. Penalty ........................................................................................................................ 34 2. Penalty ........................................................................................................................ 34
F. Indecent Assault When Mental Disability Renders F. Indecent Assault When Mental Disability Renders
Complainant Incapable of Consent ....................................................................... 34 Complainant Incapable of Consent ....................................................................... 34
2. Penalty ........................................................................................................................ 35 2. Penalty ........................................................................................................................ 35
G. Indecent Assault of a Child Under 13 Years of Age ........................................ 35 G. Indecent Assault of a Child Under 13 Years of Age ........................................ 35
2. Penalty ....................................................................................................................... 35 2. Penalty ....................................................................................................................... 35
H. Indecent Assault of a Child Under 16 Years of Age ........................................ 36 H. Indecent Assault of a Child Under 16 Years of Age ........................................ 36
2. Penalty ........................................................................................................................ 36 2. Penalty ........................................................................................................................ 36
I. Types of Evidence ......................................................................................................... 36 I. Types of Evidence ......................................................................................................... 36
J. Mental Disability ........................................................................................................... 37 J. Mental Disability ........................................................................................................... 37
K. Youthful Victim .............................................................................................................. 37 K. Youthful Victim .............................................................................................................. 37
3.9 INDECENT EXPOSURE ...................................................................................... 37 3.9 INDECENT EXPOSURE ...................................................................................... 37
B. Evidence ........................................................................................................................... 37 B. Evidence ........................................................................................................................... 37
C. Penalties ............................................................................................................................ 38 C. Penalties ............................................................................................................................ 38
3.10 INCEST .................................................................................................................. 38 3.10 INCEST .................................................................................................................. 38
A. Incest ................................................................................................................................. 38 A. Incest ................................................................................................................................. 38
2. Definitions ................................................................................................................ 39 2. Definitions ................................................................................................................ 39
3. Gender-Neutral ...................................................................................................... 39 3. Gender-Neutral ...................................................................................................... 39
4. Prohibited Marriage Licenses .......................................................................... 39 4. Prohibited Marriage Licenses .......................................................................... 39
B. Incest of a Minor ............................................................................................................ 40 B. Incest of a Minor ............................................................................................................ 40
2. Evidence .................................................................................................................... 40 2. Evidence .................................................................................................................... 40
3.11 INVASION OF PRIVACY ..................................................................................... 41 3.11 INVASION OF PRIVACY ..................................................................................... 41
A. Statutory Citation .......................................................................................................... 41 A. Statutory Citation .......................................................................................................... 41
B. Statutory Elements ....................................................................................................... 41 B. Statutory Elements ....................................................................................................... 41
C. Multiple Violations ........................................................................................................ 42 C. Multiple Violations ........................................................................................................ 42
D. Penalties ............................................................................................................................ 42 D. Penalties ............................................................................................................................ 42
E. Exclusions for Law Enforcement Conduct .......................................................... 43 E. Exclusions for Law Enforcement Conduct .......................................................... 43
F. Definition of Photographs or Films ................................................................ 43 F. Definition of Photographs or Films ................................................................ 43
3.12 SEXUAL INTERCOURSE WITH ANIMAL ....................................................... 43 3.12 SEXUAL INTERCOURSE WITH ANIMAL ....................................................... 43
B. History ................................................................................................................................ 43 B. History ................................................................................................................................ 43
C. Penalty ................................................................................................................................ 43 C. Penalty ................................................................................................................................ 43
3.13 CRIMINAL ATTEMPT, CONSPIRACY OR SOLICITATION.......................... 43 3.13 CRIMINAL ATTEMPT, CONSPIRACY OR SOLICITATION.......................... 43
A. Statutory Citations ........................................................................................................ 43 A. Statutory Citations ........................................................................................................ 43
B. Definition of Inchoate Offenses ............................................................................... 44 B. Definition of Inchoate Offenses ............................................................................... 44
1. Grading and Penalties .......................................................................................... 45 1. Grading and Penalties .......................................................................................... 45
2. Dismissal of Charge ............................................................................................... 45 2. Dismissal of Charge ............................................................................................... 45
D. Sex Offender Registration ......................................................................................... 45 D. Sex Offender Registration ......................................................................................... 45
Chapter Three Chapter Three

This chapter discusses offenses of sexual violence from the Pennsylvania Crimes This chapter discusses offenses of sexual violence from the Pennsylvania Crimes
Code. The chapter is divided into thirteen sections. In Chapter 2, many of the terms used Code. The chapter is divided into thirteen sections. In Chapter 2, many of the terms used
in these crimes are defined, including: in these crimes are defined, including:
complainant complainant
deviate sexual intercourse deviate sexual intercourse
forcible compulsion forcible compulsion
indecent contact indecent contact
serious bodily injury serious bodily injury
sexual intercourse sexual intercourse
The sections discuss the sexual offenses, including the statutory definitions, The sections discuss the sexual offenses, including the statutory definitions,
elements, penalties, and, when appropriate, pertinent case law. The offenses are: elements, penalties, and, when appropriate, pertinent case law. The offenses are:
Rape, Section 3.2 Rape, Section 3.2

Statutory Sexual Assault, Section 3.3 Statutory Sexual Assault, Section 3.3
Involuntary Deviate Sexual Intercourse, Section 3.4 Involuntary Deviate Sexual Intercourse, Section 3.4
Sexual Assault, Section 3.5 Sexual Assault, Section 3.5
Institutional Sexual Assault, Section 3.6 Institutional Sexual Assault, Section 3.6
Aggravated Indecent Assault, Section 3.7 Aggravated Indecent Assault, Section 3.7
Indecent Assault, Section 3.8 Indecent Assault, Section 3.8
Indecent Exposure, Section 3.9 Indecent Exposure, Section 3.9
Incest, Section 3.10 Incest, Section 3.10
Invasion of Privacy, Section 3.11 Invasion of Privacy, Section 3.11
Sexual Intercourse with Animal, Section 3.12 Sexual Intercourse with Animal, Section 3.12
Offenses specifically against children are addressed in Chapter 4. Inchoate offenses Offenses specifically against children are addressed in Chapter 4. Inchoate offenses
are briefly discussed in Section 3.13. are briefly discussed in Section 3.13.
The standard of statutory construction is clear and unambiguous: the provisions The standard of statutory construction is clear and unambiguous: the provisions
of the crimes code must be construed according to the fair import of their terms. 18 of the crimes code must be construed according to the fair import of their terms. 18
Pa.Cons.Stat.Ann. 105. If the language is susceptible of differing constructions it must Pa.Cons.Stat.Ann. 105. If the language is susceptible of differing constructions it must
be interpreted to further the general purposes of Title 18 and the special purposes of the be interpreted to further the general purposes of Title 18 and the special purposes of the
particular provision involved. Id. particular provision involved. Id.
Furthermore, when the words of a statute are clear and free from all ambiguity, Furthermore, when the words of a statute are clear and free from all ambiguity,
the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.Cons. the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.Cons.
Stat.Ann. 1921(b); Commonwealth v. Kelley, 569 Pa. 179, 185, 801 A.2d 551, 554 Stat.Ann. 1921(b); Commonwealth v. Kelley, 569 Pa. 179, 185, 801 A.2d 551, 554
(2002). Finally, penal statutes are to be strictly construed. 1 Pa.Cons.Stat.Ann. 1928(b) (2002). Finally, penal statutes are to be strictly construed. 1 Pa.Cons.Stat.Ann. 1928(b)
(1); Commonwealth v. Booth, 564 Pa. 228, 234, 766 A.2d 843, 846 (2001). (1); Commonwealth v. Booth, 564 Pa. 228, 234, 766 A.2d 843, 846 (2001).
The need for strict construction does not require that the words of The need for strict construction does not require that the words of
a penal statute be given their narrowest possible meaning or that a penal statute be given their narrowest possible meaning or that
legislative intent be disregarded, nor does it override the more legislative intent be disregarded, nor does it override the more
general principle that the words of a statute must be construed general principle that the words of a statute must be construed
according to their common and approved usage . It does mean, according to their common and approved usage . It does mean,
however, that where ambiguity exists in the language of a penal however, that where ambiguity exists in the language of a penal
statute, such language should be interpreted in the light most statute, such language should be interpreted in the light most
favorable to the accused. favorable to the accused.
Id. (citations omitted). Id. (citations omitted).
3.2 RAPE 3.2 RAPE

Types of Rape: Statutory Elements Types of Rape: Statutory Elements
1) Engaging in sexual intercourse with a complainant;1 1) Engaging in sexual intercourse with a complainant;1
2) In one of the following circumstances: 2) In one of the following circumstances:
a) By forcible compulsion2 (18 Pa.Cons.Stat.Ann. 3121(a)(1)); a) By forcible compulsion2 (18 Pa.Cons.Stat.Ann. 3121(a)(1));
b) By threat of forcible compulsion that would prevent resistance by b) By threat of forcible compulsion that would prevent resistance by
a person of reasonable resolution (18 Pa.Cons.Stat.Ann. 3121(a) a person of reasonable resolution (18 Pa.Cons.Stat.Ann. 3121(a)
(2)); (2));
c) When the complainant is unconscious or where the person knows c) When the complainant is unconscious or where the person knows
that the complainant is unaware that the sexual intercourse is that the complainant is unaware that the sexual intercourse is
occurring (18 Pa.Cons.Stat.Ann. 3121(a)(3)); occurring (18 Pa.Cons.Stat.Ann. 3121(a)(3));
d) When the accused has substantially impaired the complainants d) When the accused has substantially impaired the complainants
or employing without the knowledge of the complainant, drugs, or employing without the knowledge of the complainant, drugs,
intoxicants or other means for the purpose of preventing resistance intoxicants or other means for the purpose of preventing resistance
(18 Pa.Cons.Stat.Ann. 3121(a)(4)); (18 Pa.Cons.Stat.Ann. 3121(a)(4));
e) When the complainant suffers from a mental disability which e) When the complainant suffers from a mental disability which
renders the complainant incapable of consent (18 Pa.Cons.Stat. renders the complainant incapable of consent (18 Pa.Cons.Stat.
Ann. 3121(a)(5)); Ann. 3121(a)(5));
f) Rape of a child: when the accused engages in sexual intercourse f) Rape of a child: when the accused engages in sexual intercourse
with a child who is less than 13 years of age. (18 Pa.Cons Stat.Ann. with a child who is less than 13 years of age. (18 Pa.Cons Stat.Ann.
3121 (c)); 3121 (c));
1 Complainant and Sexual intercourse are defined in Chapter 2, Sections 2.2(A) & (F). 1 Complainant and Sexual intercourse are defined in Chapter 2, Sections 2.2(A) & (F).
2 Forcible Compulsion is defined in Chapter 2, Section 2.2(C). 2 Forcible Compulsion is defined in Chapter 2, Section 2.2(C).
g) Rape of a child with serious bodily injury: when the accused g) Rape of a child with serious bodily injury: when the accused
engages in sexual intercourse with a child who is under 13 years engages in sexual intercourse with a child who is under 13 years
of age and suffers serious bodily injury in the course of the offense. of age and suffers serious bodily injury in the course of the offense.
(18 Pa.Cons.Stat.Ann. 3121 (d)). (18 Pa.Cons.Stat.Ann. 3121 (d)).
A. Rape by Forcible Compulsion A. Rape by Forcible Compulsion
1. Statutory Citation and Elements 1. Statutory Citation and Elements
18 Pa.Cons.Stat.Ann. 3121(a)(1). 18 Pa.Cons.Stat.Ann. 3121(a)(1).

Engaging in sexual intercourse with a complainant; Engaging in sexual intercourse with a complainant;
By forcible compulsion By forcible compulsion
2. Forcible Compulsion 2. Forcible Compulsion
The force necessary to support a conviction of rape need only be such as to The force necessary to support a conviction of rape need only be such as to
establish lack of consent and to induce the victim to submit without additional establish lack of consent and to induce the victim to submit without additional
resistance. Commonwealth v. Berkowitz, 537 Pa. 143, 148, 641 A.2d 1161, resistance. Commonwealth v. Berkowitz, 537 Pa. 143, 148, 641 A.2d 1161,
1163 (1994). 1163 (1994).
Forcible compulsion as used in 18 Pa.Cons.Stat.Ann. 3121(1) includes not Forcible compulsion as used in 18 Pa.Cons.Stat.Ann. 3121(1) includes not
only physical force or violence but also moral, psychological or intellectual only physical force or violence but also moral, psychological or intellectual
force used to compel a person to engage in sexual intercourse against that force used to compel a person to engage in sexual intercourse against that
persons will. Commonwealth v. Rhodes, 510 Pa. 537, 555, 510 A.2d 1217, persons will. Commonwealth v. Rhodes, 510 Pa. 537, 555, 510 A.2d 1217,
1226 (1986) 1226 (1986)
(a) Type of Force (a) Type of Force
There must be a showing of either physical force, a threat of physical There must be a showing of either physical force, a threat of physical
force, or psychological coercion to satisfy the forcible compulsion force, or psychological coercion to satisfy the forcible compulsion
requirement under 18 Pa.Cons.Stat.Ann. 3121. Commonwealth v. requirement under 18 Pa.Cons.Stat.Ann. 3121. Commonwealth v.
Berkowitz, 537 Pa. 143, 149, 641 A.2d 1161, 1164 (1994). Berkowitz, 537 Pa. 143, 149, 641 A.2d 1161, 1164 (1994).
(b) Degree of Force (b) Degree of Force
The degree of force required to constitute rape is relative and depends The degree of force required to constitute rape is relative and depends
on the facts and particular circumstances of the case. Commonwealth on the facts and particular circumstances of the case. Commonwealth
v. Berkowitz, 537 Pa. 143, 148, 641 A.2d 1161, 1163 (1994). v. Berkowitz, 537 Pa. 143, 148, 641 A.2d 1161, 1163 (1994).
When determining whether evidence is sufficient to demonstrate When determining whether evidence is sufficient to demonstrate
forcible compulsion beyond a reasonable doubt, factors to be forcible compulsion beyond a reasonable doubt, factors to be
considered include the respective physical conditions of the considered include the respective physical conditions of the
victim and the accused, as well as the relative position of authority, victim and the accused, as well as the relative position of authority,
domination, or custodial control the accused may exercise over the domination, or custodial control the accused may exercise over the
victim. Commonwealth v. Smolko, 666 A.2d 672, 676 (Pa. Super. victim. Commonwealth v. Smolko, 666 A.2d 672, 676 (Pa. Super.
1995). 1995).
Statement of Non-Consent: A statement of non-consent, such as when Statement of Non-Consent: A statement of non-consent, such as when
a victim says no throughout the sexual encounter, is relevant to the a victim says no throughout the sexual encounter, is relevant to the
issue of consent, but not relevant to the issue of force. Commonwealth issue of consent, but not relevant to the issue of force. Commonwealth
v. Berkowitz, 537 Pa. 143, 149, 641 A.2d 1161, 1164 (1994). v. Berkowitz, 537 Pa. 143, 149, 641 A.2d 1161, 1164 (1994).
3. Consent 3. Consent
The essence of the criminal act of rape is involuntary submission to sexual The essence of the criminal act of rape is involuntary submission to sexual
intercourse. Commonwealth v. Karkaria, 533 Pa. 412, 420, 625 A.2d 1167, intercourse. Commonwealth v. Karkaria, 533 Pa. 412, 420, 625 A.2d 1167,
1170 (Pa. 1993). Therefore, effective consent to sexual intercourse will 1170 (Pa. 1993). Therefore, effective consent to sexual intercourse will
negate a finding of forcible compulsion. Commonwealth v. Rhodes, 510 Pa. negate a finding of forcible compulsion. Commonwealth v. Rhodes, 510 Pa.
537, 554, 510 A.2d 1217, 1225 (Pa. 1986). 537, 554, 510 A.2d 1217, 1225 (Pa. 1986).
(a) Mistake of Fact (a) Mistake of Fact
In Rape or IDSI prosecutions, there is no reasonable mistake of fact In Rape or IDSI prosecutions, there is no reasonable mistake of fact
defense as to consent. Commonwealth v. Fischer, 721 A.2d 1111 (Pa. defense as to consent. Commonwealth v. Fischer, 721 A.2d 1111 (Pa.
Super. 1998), appeal dismissed as improvidently granted, 560 Pa. 410, Super. 1998), appeal dismissed as improvidently granted, 560 Pa. 410,
745 A.2d 1214 (2000); Commonwealth v. Farmer, 758 A.2d 173 (Pa. 745 A.2d 1214 (2000); Commonwealth v. Farmer, 758 A.2d 173 (Pa.
(b) Statement of Non-consent (b) Statement of Non-consent
A statement of non-consent, such as when a victim says no A statement of non-consent, such as when a victim says no
throughout the sexual encounter, is relevant to the issue of consent, throughout the sexual encounter, is relevant to the issue of consent,
but not relevant to the issue of force. Commonwealth v. Berkowitz, but not relevant to the issue of force. Commonwealth v. Berkowitz,
537 Pa. 143, 149, 641 A.2d 1161, 1164 (1994). 537 Pa. 143, 149, 641 A.2d 1161, 1164 (1994).
4. Rape Trauma Syndrome 4. Rape Trauma Syndrome
An experts testimony concerning the effect of rape trauma syndrome on a An experts testimony concerning the effect of rape trauma syndrome on a
victim, i.e., her failure to identify the assailant shortly after the sexual assault victim, i.e., her failure to identify the assailant shortly after the sexual assault
because of an acute phase of rape trauma syndrome, making ordinary because of an acute phase of rape trauma syndrome, making ordinary
functions difficult, improperly enhanced the victims credibility in the eyes of functions difficult, improperly enhanced the victims credibility in the eyes of
jury and, as such, was inadmissible. Commonwealth v. Gallagher, 519 Pa. jury and, as such, was inadmissible. Commonwealth v. Gallagher, 519 Pa.
291, 297, 547 A.2d 355, 358 (1988). The Court found equally inadmissible 291, 297, 547 A.2d 355, 358 (1988). The Court found equally inadmissible
the same experts opinion that the victims in-court identification five years the same experts opinion that the victims in-court identification five years
later was credible. See also, Commonwealth v. Robinson, 5 A.3d 339, 343 later was credible. See also, Commonwealth v. Robinson, 5 A.3d 339, 343
(2010), appeal denied, 610 Pa. 585, 19 A.3d 1051 (2011).3 (2010), appeal denied, 610 Pa. 585, 19 A.3d 1051 (2011).3
In Commonwealth v. Pickford, 536 A.2d 1348, 1351 n. 2 (Pa. Super. 1987), In Commonwealth v. Pickford, 536 A.2d 1348, 1351 n. 2 (Pa. Super. 1987),
appeal dismissed, 522 Pa. 506, 564 A.2d 158 (1989), the Superior Court appeal dismissed, 522 Pa. 506, 564 A.2d 158 (1989), the Superior Court
described rape trauma syndrome as follows: described rape trauma syndrome as follows:
3 For additional detailed discussion about Rape Trauma Syndrome, See Chapter 8, Section 8.4 RAPE TRAUMA SYNDROME. 3 For additional detailed discussion about Rape Trauma Syndrome, See Chapter 8, Section 8.4 RAPE TRAUMA SYNDROME.
Rape trauma syndrome is one kind of post-traumatic stress Rape trauma syndrome is one kind of post-traumatic stress
disorder. The essential feature of post-traumatic stress disorder. The essential feature of post-traumatic stress
disorder is the development of characteristic symptoms disorder is the development of characteristic symptoms
after a psychologically traumatic incident that is usually after a psychologically traumatic incident that is usually
beyond the range of ordinary human experience. Those beyond the range of ordinary human experience. Those
symptoms typically involve reexperiencing the traumatic symptoms typically involve reexperiencing the traumatic
incident; numbing of responsiveness to, or lessened incident; numbing of responsiveness to, or lessened
involvement with, the external world; and a variety of involvement with, the external world; and a variety of
autonomic, dysphoric, or cognitive symptoms. autonomic, dysphoric, or cognitive symptoms.
In Pickford, the Superior Court affirmed the trial courts decision to permit lay In Pickford, the Superior Court affirmed the trial courts decision to permit lay
testimony regarding the victims post-rape trauma, i.e., the victims behavior testimony regarding the victims post-rape trauma, i.e., the victims behavior
and conduct several days following the incident. Commonwealth v. Pickford, and conduct several days following the incident. Commonwealth v. Pickford,
536 A.2d at 1351-1352. 536 A.2d at 1351-1352.
B. Rape by Threat of Forcible Compulsion B. Rape by Threat of Forcible Compulsion

By threat of forcible compulsion that would prevent resistance by a person By threat of forcible compulsion that would prevent resistance by a person
of reasonable resolution. of reasonable resolution.
2. Forcible Compulsion4 2. Forcible Compulsion4
Forcible compulsion as used in 18 Pa.Cons.Stat.Ann. 3121 includes not Forcible compulsion as used in 18 Pa.Cons.Stat.Ann. 3121 includes not
only physical force or violence but also moral, psychological or intellectual only physical force or violence but also moral, psychological or intellectual
force used to compel a person to engage in sexual intercourse against that force used to compel a person to engage in sexual intercourse against that
persons will. Commonwealth v. Rhodes, 510 Pa. 537, 555, 510 A.2d 1217, persons will. Commonwealth v. Rhodes, 510 Pa. 537, 555, 510 A.2d 1217,
1226 (1986) 1226 (1986)
3. Objective Standard Utilized 3. Objective Standard Utilized
An objective standard is used in determining whether a threat of forcible An objective standard is used in determining whether a threat of forcible
compulsion was made. Commonwealth v. Rhodes, 510 Pa. 537, 555, 510 compulsion was made. Commonwealth v. Rhodes, 510 Pa. 537, 555, 510
A.2d 1217, 1226 (1986): [A]n objective standard regarding the use of threats A.2d 1217, 1226 (1986): [A]n objective standard regarding the use of threats
of forcible compulsion to prevent resistance (as opposed to actual application of forcible compulsion to prevent resistance (as opposed to actual application
of forcible compulsion.) of forcible compulsion.)
4. Verbal Threats Sufficient 4. Verbal Threats Sufficient
Verbal threats are sufficient to establish threat of forcible compulsion. Verbal threats are sufficient to establish threat of forcible compulsion.
Commonwealth v. Montgomery, 687 A.2d 1131 (Pa. Super. 1996) (Opinion Commonwealth v. Montgomery, 687 A.2d 1131 (Pa. Super. 1996) (Opinion
4 Forcible compulsion is defined in Chapter 2, Section 2.2(C). 4 Forcible compulsion is defined in Chapter 2, Section 2.2(C).
by Olszewski, J., with Judges concurring in result). by Olszewski, J., with Judges concurring in result).
C. Rape When the Complainant is Unconscious or Unaware C. Rape When the Complainant is Unconscious or Unaware

When the complainant is unconscious or where the person knows that When the complainant is unconscious or where the person knows that
the complainant is unaware that the sexual intercourse is occurring. the complainant is unaware that the sexual intercourse is occurring.
2. Purpose of Section 2. Purpose of Section
This subsection proscribing intercourse with unconscious persons was This subsection proscribing intercourse with unconscious persons was
enacted to proscribe intercourse with persons unable to consent because of enacted to proscribe intercourse with persons unable to consent because of
their physical condition. Commonwealth v. Price, 616 A.2d 681 (Pa. Super. their physical condition. Commonwealth v. Price, 616 A.2d 681 (Pa. Super.
1992). 1992).
3. Sleeping Victim 3. Sleeping Victim
A sleeping victim is unconscious for purposes of rape statute. Commonwealth A sleeping victim is unconscious for purposes of rape statute. Commonwealth
v. Wall, 953 A.2d 581, 584 (Pa.Super. 2008), appeal denied, 600 Pa. 733, 963 v. Wall, 953 A.2d 581, 584 (Pa.Super. 2008), appeal denied, 600 Pa. 733, 963
A.2d 470 (2008); Commonwealth v. Price, 616 A.2d 681 (Pa. Super. 1992). A.2d 470 (2008); Commonwealth v. Price, 616 A.2d 681 (Pa. Super. 1992).
This circumstance is present so long as the complainant was unconscious This circumstance is present so long as the complainant was unconscious
when sexual intercourse was initiated. Id. when sexual intercourse was initiated. Id.
4. Unconscious Victim 4. Unconscious Victim
A complainant is unconscious when she lacks the conscious awareness that A complainant is unconscious when she lacks the conscious awareness that
she would possess in the normal waking state. Commonwealth v. Widmer, she would possess in the normal waking state. Commonwealth v. Widmer,
560 Pa. 308, 744 A.2d 745 (2000). 560 Pa. 308, 744 A.2d 745 (2000).
5. Constructive Unconsciousness 5. Constructive Unconsciousness
A complainant may be constructively unconscious if his or her awareness is A complainant may be constructively unconscious if his or her awareness is
severely impaired. Commonwealth v. Erney, 548 Pa. 467, 698 A.2d 56 (1997). severely impaired. Commonwealth v. Erney, 548 Pa. 467, 698 A.2d 56 (1997).
The Pennsylvania Supreme Court has held that the statutory elements of The Pennsylvania Supreme Court has held that the statutory elements of
section 3121(a)(3) are established if the victim was intermittently conscious section 3121(a)(3) are established if the victim was intermittently conscious
and unconscious throughout an assault and was at all relevant times in such and unconscious throughout an assault and was at all relevant times in such
impaired physical and mental condition so as to be unable to knowingly impaired physical and mental condition so as to be unable to knowingly
consent[.] Id., 548 Pa. at 473, 698 A.2d at 59. This charge of Rape does not consent[.] Id., 548 Pa. at 473, 698 A.2d at 59. This charge of Rape does not
include only those victims who were completely unaware of the assault; include only those victims who were completely unaware of the assault;
despite the victims ability to perceive some aspects of the assault, the victims despite the victims ability to perceive some aspects of the assault, the victims
lack of knowledge of much of what occurred supports the finding that the lack of knowledge of much of what occurred supports the finding that the
victim was unconscious during portions of the assault and, therefore, victim was unconscious during portions of the assault and, therefore,
lacked ability to consent. In such cases, the victims submission to sexual lacked ability to consent. In such cases, the victims submission to sexual
intercourse is deemed involuntary, and intercourse with her constitutes rape intercourse is deemed involuntary, and intercourse with her constitutes rape
of an unconscious individual. Id. See also, Commonwealth v. Lungin, 77 Pa. D. of an unconscious individual. Id. See also, Commonwealth v. Lungin, 77 Pa. D.
& C.4th 267 (Bucks Cty. 2005) & C.4th 267 (Bucks Cty. 2005)
D. Rape When the Assailant has Impaired the Complainants Power to Resist D. Rape When the Assailant has Impaired the Complainants Power to Resist

When the accused has substantially impaired the complainants power When the accused has substantially impaired the complainants power
to appraise or control his or her conduct by administering or employing to appraise or control his or her conduct by administering or employing
without the knowledge of the complainant, drugs, intoxicants or other without the knowledge of the complainant, drugs, intoxicants or other
means for the purpose of preventing resistance. means for the purpose of preventing resistance.
2. Additional Penalty 2. Additional Penalty
An additional penalty of up to ten years imprisonment and a fine of up to An additional penalty of up to ten years imprisonment and a fine of up to
$100,000 may be imposed on persons convicted under 18 Pa.Cons.Stat.Ann. $100,000 may be imposed on persons convicted under 18 Pa.Cons.Stat.Ann.
3121(a)(4). 3121(a)(4).
E. Rape When a Mental Disability Renders the Complainant Incapable of E. Rape When a Mental Disability Renders the Complainant Incapable of
Consent Consent

When the complainant suffers from a mental disability which renders the When the complainant suffers from a mental disability which renders the
complainant incapable of consent. complainant incapable of consent.
2. Commonwealths Burden of Proof 2. Commonwealths Burden of Proof
Although the statute does not state an intent element, the Commonwealth Although the statute does not state an intent element, the Commonwealth
must prove the defendant acted intentionally, knowingly, or recklessly must prove the defendant acted intentionally, knowingly, or recklessly
regarding the victims mental disability for every material element of the regarding the victims mental disability for every material element of the
statutory provision. Commonwealth v. Thomson, 673 A.2d 357, 359 (Pa. statutory provision. Commonwealth v. Thomson, 673 A.2d 357, 359 (Pa.
Super. 1996), appeal denied, 546 Pa. 679, 686 A.2d 1310 (1996).5 Super. 1996), appeal denied, 546 Pa. 679, 686 A.2d 1310 (1996).5
F. Rape of a Child F. Rape of a Child
18 Pa.Cons.Stat.Ann. 3121 (c). 18 Pa.Cons.Stat.Ann. 3121 (c).

5 See 4 Summ.Pa.Jur.2d Criminal Law 15:46 (2d ed.). 5 See 4 Summ.Pa.Jur.2d Criminal Law 15:46 (2d ed.).
Engaging in sexual intercourse with a child; Engaging in sexual intercourse with a child;
The child is less than 13 years of age. The child is less than 13 years of age.
2. Mistake as to Age 2. Mistake as to Age
It is no defense that the perpetrator did not know the age of the child or It is no defense that the perpetrator did not know the age of the child or
reasonably believed that child to be the age of 13 years or older. reasonably believed that child to be the age of 13 years or older.
18 Pa.Cons.stat.ann. 3102 18 Pa.Cons.stat.ann. 3102

Mistake as to Age Mistake as to Age
Except as otherwise provided, whenever in this chapter Except as otherwise provided, whenever in this chapter
the criminality of conduct depends on a child being below the criminality of conduct depends on a child being below
the age of 14 years, it is no defense that the defendant did the age of 14 years, it is no defense that the defendant did
not know the age of the child or reasonably believed the not know the age of the child or reasonably believed the
child to be the age of 14 years or older. When criminality child to be the age of 14 years or older. When criminality
depends on the childs being below a critical age older depends on the childs being below a critical age older
than 14 years, it is a defense for the defendant to prove than 14 years, it is a defense for the defendant to prove
by a preponderance of the evidence that he or she by a preponderance of the evidence that he or she
reasonably believed the child to be above the critical age. reasonably believed the child to be above the critical age.
Commonwealth v. Dennis, 784 A.2d 179, 181 (Pa. Super. 2001), appeal Commonwealth v. Dennis, 784 A.2d 179, 181 (Pa. Super. 2001), appeal
denied, 568 Pa. 733, 798 A.2d 1287 (2002): Victim of 12 years of age deemed denied, 568 Pa. 733, 798 A.2d 1287 (2002): Victim of 12 years of age deemed
incapable of consenting; therefore defendant was criminally liable for rape, incapable of consenting; therefore defendant was criminally liable for rape,
regardless of the victims consent or of defendants purported belief that regardless of the victims consent or of defendants purported belief that
victim was 14 or older. victim was 14 or older.
Commonwealth v. Hacker, 609 Pa. 108, 112, 15 A.3d 333, 336 (2011): [T]he Commonwealth v. Hacker, 609 Pa. 108, 112, 15 A.3d 333, 336 (2011): [T]he
General Assembly has expressly barred any mistake of age defense. General Assembly has expressly barred any mistake of age defense.
3. Enhanced Penalty 3. Enhanced Penalty
Maximum incarceration sentence shall be fixed by the Court at not more than Maximum incarceration sentence shall be fixed by the Court at not more than
40 years. Maximum fine is not more than $25,000.00. 40 years. Maximum fine is not more than $25,000.00.
G. Rape of a Child Resulting in Serious Bodily Injury G. Rape of a Child Resulting in Serious Bodily Injury
18 Pa. Cons. Stat. Ann. 3121 (d). 18 Pa. Cons. Stat. Ann. 3121 (d).
Engaging in sexual intercourse with a child; Engaging in sexual intercourse with a child;
The child is less than 13 years of age; The child is less than 13 years of age;
The child suffers serious bodily injury in the course of the offense. The child suffers serious bodily injury in the course of the offense.
Commonwealth v. Kerrigan, 920 A.2d 190 (Pa.Super. 2007), appeal denied, Commonwealth v. Kerrigan, 920 A.2d 190 (Pa.Super. 2007), appeal denied,
594 Pa. 676, 932 A.2d 1286 (2007): the transmission of HPV and genital warts 594 Pa. 676, 932 A.2d 1286 (2007): the transmission of HPV and genital warts
satisfies the serious bodily injury requirement because of the permanent satisfies the serious bodily injury requirement because of the permanent
nature of the disease, the fact that the victim risks passing the virus to future nature of the disease, the fact that the victim risks passing the virus to future
sexual partners or children she may choose to have through the birth canal, sexual partners or children she may choose to have through the birth canal,
and because there is a strong link between HPV and cervical and other genital and because there is a strong link between HPV and cervical and other genital
cancers. cancers.
2. Mistake as to Age6 2. Mistake as to Age6
reasonably believed that child to be the age of 13 years or older. reasonably believed that child to be the age of 13 years or older.
18 Pa.Cons.stat.ann. 3102 18 Pa.Cons.stat.ann. 3102

Except as otherwise provided, whenever in this chapter Except as otherwise provided, whenever in this chapter
the criminality of conduct depends on a child being below the criminality of conduct depends on a child being below
the age of 14 years, it is no defense that the defendant did the age of 14 years, it is no defense that the defendant did
not know the age of the child or reasonably believed the not know the age of the child or reasonably believed the
child to be the age of 14 years or older. When criminality child to be the age of 14 years or older. When criminality
depends on the childs being below a critical age older depends on the childs being below a critical age older
than 14 years, it is a defense for the defendant to prove than 14 years, it is a defense for the defendant to prove
by a preponderance of the evidence that he or she by a preponderance of the evidence that he or she
reasonably believed the child to be above the critical age. reasonably believed the child to be above the critical age.
3. Serious Bodily Injury 3. Serious Bodily Injury
Serious bodily injury is bodily injury that creates a substantial risk of death Serious bodily injury is bodily injury that creates a substantial risk of death
or that causes serious, permanent disfigurement, or protracted loss or or that causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ. 18 Pa.Cons.Stat. impairment of the function of any bodily member or organ. 18 Pa.Cons.Stat.
Ann. 2301.7 Ann. 2301.7
4. Enhanced Penalty 4. Enhanced Penalty
May be sentenced up to a maximum term of life imprisonment. Maximum May be sentenced up to a maximum term of life imprisonment. Maximum
fine is not more than $25,000.00. fine is not more than $25,000.00.
H. Key Provisions of Rape Statute H. Key Provisions of Rape Statute
1. Fundamental Nature of Rape 1. Fundamental Nature of Rape

The essence of the criminal act of rape is involuntary submission to sexual The essence of the criminal act of rape is involuntary submission to sexual
intercourse. Commonwealth v. Erney, 548 Pa. 467, 698 A.2d 56 (1997); intercourse. Commonwealth v. Erney, 548 Pa. 467, 698 A.2d 56 (1997);
Commonwealth v. Karkaria, 533 Pa. 412, 420, 625 A.2d 1167, 1170 (1993). Commonwealth v. Karkaria, 533 Pa. 412, 420, 625 A.2d 1167, 1170 (1993).
6 For additional discussion see Chapter 3, Section 3.2(F)(2), Mistake as to Age. 6 For additional discussion see Chapter 3, Section 3.2(F)(2), Mistake as to Age.
7 See Chapter 2, Section 2.2(E), Serious Bodily Injury. 7 See Chapter 2, Section 2.2(E), Serious Bodily Injury.
2. Penetration Necessary 2. Penetration Necessary
Some degree of penetration, which, however slight, is sufficient to fulfill the Some degree of penetration, which, however slight, is sufficient to fulfill the
penetration element of rape. Commonwealth v. Fiebiger, 570 Pa. 583, 590, penetration element of rape. Commonwealth v. Fiebiger, 570 Pa. 583, 590,
n.4., 810 A.2d 1233, 1237, n.4 (2002). See discussion Section 2.2(F)(1)(b). n.4., 810 A.2d 1233, 1237, n.4 (2002). See discussion Section 2.2(F)(1)(b).
3. Time of Offense 3. Time of Offense
A criminal prosecution also requires proof beyond a reasonable doubt that A criminal prosecution also requires proof beyond a reasonable doubt that
the accused committed the offense charged at the time specified within the the accused committed the offense charged at the time specified within the
indictment. Commonwealth v. Karkaria, 533 Pa. 412, 420, 625 A.2d 1167, indictment. Commonwealth v. Karkaria, 533 Pa. 412, 420, 625 A.2d 1167,
1170 (1993). 1170 (1993).
4. No Resistance Necessary 4. No Resistance Necessary
The victim of a rape need not resist. Commonwealth v. Berkowitz, 537 Pa. The victim of a rape need not resist. Commonwealth v. Berkowitz, 537 Pa.
143, 148, 641 A.2d 1161, 1163 (1994); 18 Pa. Cons. Stat. Ann. 3107.8 143, 148, 641 A.2d 1161, 1163 (1994); 18 Pa. Cons. Stat. Ann. 3107.8
I. Penalties I. Penalties
1. Rape 1. Rape
Any offense listed under 18 Pa.Cons.Stat.Ann. 3121(a) is graded as a Felony Any offense listed under 18 Pa.Cons.Stat.Ann. 3121(a) is graded as a Felony
of the First Degree. In accordance with 18 Pa. Cons. Stat. Ann. 1103, in the of the First Degree. In accordance with 18 Pa. Cons. Stat. Ann. 1103, in the
case of a felony of the first degree, a term of imprisonment shall be fixed by case of a felony of the first degree, a term of imprisonment shall be fixed by
the court at not more than 20 years and in accordance with 18 Pa. Cons. Stat. the court at not more than 20 years and in accordance with 18 Pa. Cons. Stat.
Ann. 1101, a fine not to exceed $ 25,000. Ann. 1101, a fine not to exceed $ 25,000.
An additional penalty of up to ten years imprisonment and a fine of up to An additional penalty of up to ten years imprisonment and a fine of up to
$100,000 may be imposed on persons convicted where the person engaged $100,000 may be imposed on persons convicted where the person engaged
in sexual intercourse with a complainant and substantially impaired the in sexual intercourse with a complainant and substantially impaired the
complainants power to appraise or control his or her conduct by administering complainants power to appraise or control his or her conduct by administering
or employing, without the knowledge of the complainant, any substance for or employing, without the knowledge of the complainant, any substance for
the purpose of preventing resistance through the inducement of euphoria, the purpose of preventing resistance through the inducement of euphoria,
memory loss and any other effect of this substance. 18 Pa.Cons.Stat.Ann. memory loss and any other effect of this substance. 18 Pa.Cons.Stat.Ann.
3121(b). 3121(b).
2. Rape of a Child 2. Rape of a Child
The offense of rape of a child under 18 Pa.Cons.Stat.Ann. 3121(c) is graded The offense of rape of a child under 18 Pa.Cons.Stat.Ann. 3121(c) is graded
as a Felony of the First Degree. as a Felony of the First Degree.
Notwithstanding the general provisions regarding sentencing for a Felony of Notwithstanding the general provisions regarding sentencing for a Felony of
the First Degree, a person convicted of rape of a child shall be sentenced to the First Degree, a person convicted of rape of a child shall be sentenced to
a term of imprisonment which shall be fixed by the court at no more than 40 a term of imprisonment which shall be fixed by the court at no more than 40
8 See Chapter 2, Section 2.2(C)(b), Resistance. 8 See Chapter 2, Section 2.2(C)(b), Resistance.
years. 18 Pa. Cons. Stat. Ann. 3121(e)(1). years. 18 Pa. Cons. Stat. Ann. 3121(e)(1).
3. Rape of a Child Resulting in Serious Bodily Injury 3. Rape of a Child Resulting in Serious Bodily Injury
The offense of rape of a child resulting in serious bodily injury under 18 The offense of rape of a child resulting in serious bodily injury under 18
Pa.Cons.Stat.Ann. 3121(d) is graded a Felony of the First Degree. Pa.Cons.Stat.Ann. 3121(d) is graded a Felony of the First Degree.
Notwithstanding the general provisions regarding sentencing for a Felony of Notwithstanding the general provisions regarding sentencing for a Felony of
the First Degree, a person convicted of rape of a child resulting in serious bodily the First Degree, a person convicted of rape of a child resulting in serious bodily
injury shall be sentenced up to to a maximum term of life imprisonment. 18 injury shall be sentenced up to to a maximum term of life imprisonment. 18
Pa.Cons.Stat.Ann. 3121(e)(2). Pa.Cons.Stat.Ann. 3121(e)(2).
4. Trafficking of Persons 4. Trafficking of Persons
A defendant who is convicted of Trafficking of Persons, 18 Pa. Cons. Stat. Ann. A defendant who is convicted of Trafficking of Persons, 18 Pa. Cons. Stat. Ann.
3002 while violating the Rape statute, 18 Pa.Cons. Stat.Ann. 3121 or the 3002 while violating the Rape statute, 18 Pa.Cons. Stat.Ann. 3121 or the
Involuntary Deviate Sexual Intercourse statute, 18 Pa.Cons.Stat.Ann. 3123 Involuntary Deviate Sexual Intercourse statute, 18 Pa.Cons.Stat.Ann. 3123
shall be sentenced up to a maximum term of life imprisonment. 42 Pa.Cons. shall be sentenced up to a maximum term of life imprisonment. 42 Pa.Cons.
Stat.Ann. 9720.2. Stat.Ann. 9720.2.
Trafficking of Persons, 18 Pa. Cons. Stat. Ann. 3002(a), is violated if a Trafficking of Persons, 18 Pa. Cons. Stat. Ann. 3002(a), is violated if a
defendant knowingly traffics or attempts to traffic another person, knowing defendant knowingly traffics or attempts to traffic another person, knowing
that the other person will be subjected to forced labor or services. that the other person will be subjected to forced labor or services.
3.3 STATUTORY SEXUAL ASSAULT 3.3 STATUTORY SEXUAL ASSAULT
Types of Statutory Sexual Assault: Statutory Elements Types of Statutory Sexual Assault: Statutory Elements
a) Engaging in sexual intercourse with a complainant; a) Engaging in sexual intercourse with a complainant;
b) The complainant is not married to the defendant; b) The complainant is not married to the defendant;
c) In one of the following circumstances: c) In one of the following circumstances:
a) The complainant is under 16 years of age; and a) The complainant is under 16 years of age; and
i. The defendant is four years older but less than eight years i. The defendant is four years older but less than eight years
ii. The defendant is eight years older but less than 11 years ii. The defendant is eight years older but less than 11 years
or or
b) The complainant is under 16 years of age and the defendant is 11 or b) The complainant is under 16 years of age and the defendant is 11 or
more years older than the complainant. more years older than the complainant.
A. Statutory Sexual Assault A. Statutory Sexual Assault
18 Pa.Cons.Stat.Ann. 3122.1(a) 18 Pa.Cons.Stat.Ann. 3122.1(a)

In one of the following circumstances: In one of the following circumstances:
The complainant is under 16 years of age; and The complainant is under 16 years of age; and
i. The defendant is four years older but less than eight years i. The defendant is four years older but less than eight years
ii. The defendant is eight years older but less than 11 years ii. The defendant is eight years older but less than 11 years
2. Penalty 2. Penalty
Statutory sexual assault is a felony of the second degree. The maximum Statutory sexual assault is a felony of the second degree. The maximum
incarceration sentence is up to 10 years and the maximum fine is up to incarceration sentence is up to 10 years and the maximum fine is up to
$25,000. $25,000.
B. Statutory Sexual Assault Older Defendant B. Statutory Sexual Assault Older Defendant
18 Pa.Cons.Stat.Ann. 3122.1(b) 18 Pa.Cons.Stat.Ann. 3122.1(b)

The complainant is under the age of 16 years; The complainant is under the age of 16 years;
The Defendant is 11 or more years older than the complainant. The Defendant is 11 or more years older than the complainant.
Statutory sexual assault older defendant is a felony of the first degree. The Statutory sexual assault older defendant is a felony of the first degree. The
maximum incarceration sentence is up to 20 years and the maximum fine is maximum incarceration sentence is up to 20 years and the maximum fine is
up to $25,000. up to $25,000.
C. Key Provisions of Statutory Sexual Assault C. Key Provisions of Statutory Sexual Assault
1. Consent Not a Defense 1. Consent Not a Defense
Consent is not a defense to statutory sexual assault. Commonwealth v. Duffy, Consent is not a defense to statutory sexual assault. Commonwealth v. Duffy,
832 A.2d 1132, 1139 (Pa. Super. 2003), appeal denied, 577 Pa. 694, 845 A.2d 832 A.2d 1132, 1139 (Pa. Super. 2003), appeal denied, 577 Pa. 694, 845 A.2d
816 (2004). 816 (2004).
Statutory sexual assault and sexual assault are not greater and lesser Statutory sexual assault and sexual assault are not greater and lesser
included offenses as lack of consent is a required element of sexual assault. included offenses as lack of consent is a required element of sexual assault.
Commonwealth v. Duffy, 832 A.2d at 1138-1139. Commonwealth v. Duffy, 832 A.2d at 1138-1139.
It is well-settled that, in order to convict a defendant It is well-settled that, in order to convict a defendant
under Section 3122.1, the Commonwealth need not prove under Section 3122.1, the Commonwealth need not prove
the elements of consent or force. Rather, Section 3122.1 the elements of consent or force. Rather, Section 3122.1
criminalizes sex with a non-spouse who is under 16, if the criminalizes sex with a non-spouse who is under 16, if the
perpetrator is four or more years older than the victim.... perpetrator is four or more years older than the victim....
Commonwealth v. A.W.C., 951 A.2d 1174, 1177 (Pa. Super. 2008) (citations Commonwealth v. A.W.C., 951 A.2d 1174, 1177 (Pa. Super. 2008) (citations
omitted). omitted).
When the criminal liability of the perpetrator depends on the victim being When the criminal liability of the perpetrator depends on the victim being
a child who is below a critical age older than 14 years, it is a defense if the a child who is below a critical age older than 14 years, it is a defense if the
defendant can show, by the standard of the preponderance of the evidence, defendant can show, by the standard of the preponderance of the evidence,
that the perpetrator reasonably believed that the child was above the critical that the perpetrator reasonably believed that the child was above the critical
age. age.
Except as otherwise provided, whenever in this chapter the Except as otherwise provided, whenever in this chapter the
criminality of conduct depends on a child being below the criminality of conduct depends on a child being below the
age of 14 years, it is no defense that the defendant did not age of 14 years, it is no defense that the defendant did not
know the age of the child or reasonably believed the child to know the age of the child or reasonably believed the child to
be the age of 14 years or older. When criminality depends on be the age of 14 years or older. When criminality depends on
the childs being below a critical age older than 14 years, it the childs being below a critical age older than 14 years, it
is a defense for the defendant to prove by a preponderance is a defense for the defendant to prove by a preponderance
of the evidence that he or she reasonably believed the child of the evidence that he or she reasonably believed the child
to be above the critical age. to be above the critical age.
18 Pa.Cons.Stat.Ann. 3102. The rationale behind Section 3102s prohibition 18 Pa.Cons.Stat.Ann. 3102. The rationale behind Section 3102s prohibition
of defending with a mistake of age defense when the child is under age 14 has of defending with a mistake of age defense when the child is under age 14 has
been explained: been explained:
The primary consideration in prohibiting unlawful, The primary consideration in prohibiting unlawful,
consensual intercourse with an underage female has been consensual intercourse with an underage female has been
traditionally attributed to the legislative desire to protect traditionally attributed to the legislative desire to protect
those who are too unsophisticated to protect themselves. those who are too unsophisticated to protect themselves.
Although due process considerations impose some Although due process considerations impose some
limitations on the absence of a knowledge requirement limitations on the absence of a knowledge requirement
from the definition of a criminal offense, due process does from the definition of a criminal offense, due process does
9 For additional discussion see Section 3.4(F)(2), Mistake as to Age. 9 For additional discussion see Section 3.4(F)(2), Mistake as to Age.
not require that the appellant be afforded the defense of not require that the appellant be afforded the defense of
mistake of the victims age in a statutory rape prosecution. mistake of the victims age in a statutory rape prosecution.
Thus, the Pennsylvania legislature, in line with a substantial Thus, the Pennsylvania legislature, in line with a substantial
majority of legislatures which have addressed this issue, majority of legislatures which have addressed this issue,
has determined that it will not provide for a reasonable has determined that it will not provide for a reasonable
mistake of age as a defense mistake of age as a defense
Commonwealth v. Robinson, 497 Pa. 49, 54-55, 438 A.2d 964, 966-967 Commonwealth v. Robinson, 497 Pa. 49, 54-55, 438 A.2d 964, 966-967
(1981), appeal dismissed, 457 U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310 (1981), appeal dismissed, 457 U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310
(1982). (1982).
See Commonwealth v. A.W.C., 951 A.2d 1174, 1179 (Pa. Super. 2008), where See Commonwealth v. A.W.C., 951 A.2d 1174, 1179 (Pa. Super. 2008), where
the Superior Court noted that if a mistake of age defense is presented in a the Superior Court noted that if a mistake of age defense is presented in a
case where the statutory element requires the child to be below a critical age case where the statutory element requires the child to be below a critical age
older than 14, once it is proffered, the burden shifts to the Commonwealth to older than 14, once it is proffered, the burden shifts to the Commonwealth to
disprove the defense. disprove the defense.
3.4 INVOLUNTARY DEVIATE SEXUAL INTERCOURSE 3.4 INVOLUNTARY DEVIATE SEXUAL INTERCOURSE
Types of IDSI: Statutory Elements Types of IDSI: Statutory Elements
1) Engaging in deviate sexual intercourse with a complainant;10 1) Engaging in deviate sexual intercourse with a complainant;10
2) In one of the following circumstances: 2) In one of the following circumstances:
a) By forcible compulsion11 (18 Pa.Cons.Stat.Ann. 3123(a)(1)); a) By forcible compulsion11 (18 Pa.Cons.Stat.Ann. 3123(a)(1));
or or
b) By threat of forcible compulsion that would prevent resistance b) By threat of forcible compulsion that would prevent resistance
by a person of reasonable resolution (18 Pa.Cons.Stat.Ann. by a person of reasonable resolution (18 Pa.Cons.Stat.Ann.
3123(a)(2)); or 3123(a)(2)); or
c) When the complainant is unconscious or the defendant c) When the complainant is unconscious or the defendant
knows that the complainant is unaware of the fact that sexual knows that the complainant is unaware of the fact that sexual
intercourse is occurring (18 Pa.Cons.Stat.Ann. 3123(a)(3)); intercourse is occurring (18 Pa.Cons.Stat.Ann. 3123(a)(3));
or or
d) When the defendant has substantially impaired the d) When the defendant has substantially impaired the
complainants ability to control his or her conduct through complainants ability to control his or her conduct through
the use of drugs, intoxicants or other means without the the use of drugs, intoxicants or other means without the
complainants knowledge (18 Pa.Cons.Stat.Ann. 3123(a)(4)); complainants knowledge (18 Pa.Cons.Stat.Ann. 3123(a)(4));
or or
10 Complainant and Deviate Sexual Intercourse are defined in Chapter 2, Section 2.2(A) & (B), respectively. 10 Complainant and Deviate Sexual Intercourse are defined in Chapter 2, Section 2.2(A) & (B), respectively.
11 Forcible Compulsion is defined in Chapter 2, Section 2.2(C). 11 Forcible Compulsion is defined in Chapter 2, Section 2.2(C).
e) When the complainant suffers from a mental disability which e) When the complainant suffers from a mental disability which
renders the complainant incapable of consent (18 Pa.Cons.Stat. renders the complainant incapable of consent (18 Pa.Cons.Stat.
Ann. 3123(a)(5)); or Ann. 3123(a)(5)); or
f) When the complainant is less than 16 years of age and the f) When the complainant is less than 16 years of age and the
defendant is four or more years older than the complainant and defendant is four or more years older than the complainant and
the complainant and defendant are not married to each other the complainant and defendant are not married to each other
(18 Pa.Cons.Stat.Ann. 3123(a)(7)); or (18 Pa.Cons.Stat.Ann. 3123(a)(7)); or
g) When the person engages in deviate sexual intercourse with a g) When the person engages in deviate sexual intercourse with a
complainant who is less than 13 years of age (18 Pa.Cons.Stat. complainant who is less than 13 years of age (18 Pa.Cons.Stat.
Ann. 3123(b)); or Ann. 3123(b)); or
h) When the person engages in deviate sexual intercourse with a h) When the person engages in deviate sexual intercourse with a
complainant who is less than 13 years of age and the complainant complainant who is less than 13 years of age and the complainant
suffers serious bodily injury in the course of the offense (18 suffers serious bodily injury in the course of the offense (18
Pa.Cons.Stat.Ann. 3123(c)). Pa.Cons.Stat.Ann. 3123(c)).
A. IDSI By Forcible Compulsion A. IDSI By Forcible Compulsion

By forcible compulsion. By forcible compulsion.
2. Forcible Compulsion12 2. Forcible Compulsion12
Concerning the element of forcible compulsion, the force needs to be such as Concerning the element of forcible compulsion, the force needs to be such as
to demonstrate an absence of consent, inducing submission without further to demonstrate an absence of consent, inducing submission without further
resistance. Thus, forcible compulsion encompasses a lack of consent, although resistance. Thus, forcible compulsion encompasses a lack of consent, although
it has been interpreted as requiring something more. Commonwealth v. it has been interpreted as requiring something more. Commonwealth v.
Buffington, 574 Pa. 29, 42, 828 A.2d 1024, 1031-1032 (2004). Buffington, 574 Pa. 29, 42, 828 A.2d 1024, 1031-1032 (2004).
In order to prove the forcible compulsion component of these charges, the In order to prove the forcible compulsion component of these charges, the
Commonwealth was required to establish beyond a reasonable doubt that Commonwealth was required to establish beyond a reasonable doubt that
appellant used either physical force, a threat of physical force, or psychological appellant used either physical force, a threat of physical force, or psychological
coercion, since the mere showing of a lack of consent does not support a coercion, since the mere showing of a lack of consent does not support a
conviction for Rape and/or IDSI by forcible compulsion. Commonwealth v. conviction for Rape and/or IDSI by forcible compulsion. Commonwealth v.
Brown, 556 Pa. 131, 136, 727 A.2d 541, 544 (1999). Brown, 556 Pa. 131, 136, 727 A.2d 541, 544 (1999).
B. IDSI By Threat of Forcible Compulsion B. IDSI By Threat of Forcible Compulsion
12 Forcible compulsion is discussed in more detail in Sections 3.2(A)(2) and 3.2(B)(2). The test for forcible compulsion under IDSI 12 Forcible compulsion is discussed in more detail in Sections 3.2(A)(2) and 3.2(B)(2). The test for forcible compulsion under IDSI
is identical to prove forcible compulsion under 3121, Rape. Commonwealth v. Smolko, 666 A.2d 672, 675 (Pa. Super. 1995). is identical to prove forcible compulsion under 3121, Rape. Commonwealth v. Smolko, 666 A.2d 672, 675 (Pa. Super. 1995).

By threat of forcible compulsion that would prevent resistance by a By threat of forcible compulsion that would prevent resistance by a
person of reasonable resolution. person of reasonable resolution.
2. Objective Standard 2. Objective Standard
An objective standard is used in determining whether a threat by forcible An objective standard is used in determining whether a threat by forcible
compulsion was used. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d compulsion was used. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d
1217 (1986). 1217 (1986).
Verbal threats are sufficient to establish forcible compulsion. Commonwealth Verbal threats are sufficient to establish forcible compulsion. Commonwealth
v. Montgomery, 687 A.2d 1131 (Pa. Super. 1996) (Per opinion of Olszewski, v. Montgomery, 687 A.2d 1131 (Pa. Super. 1996) (Per opinion of Olszewski,
J., with Judges concurring in result.). J., with Judges concurring in result.).
3. Totality of the Circumstances 3. Totality of the Circumstances
In Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), the In Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), the
Pennsylvania Supreme Court explained: Pennsylvania Supreme Court explained:
The determination of whether there is sufficient evidence The determination of whether there is sufficient evidence
to demonstrate beyond a reasonable doubt that an accused to demonstrate beyond a reasonable doubt that an accused
engaged in sexual intercourse by forcible compulsion (which engaged in sexual intercourse by forcible compulsion (which
we have defined to include not only physical force or violence, we have defined to include not only physical force or violence,
but also moral, psychological or intellectual force used to but also moral, psychological or intellectual force used to
compel a person to engage in sexual intercourse against that compel a person to engage in sexual intercourse against that
persons will,), or by the threat of such forcible compulsion persons will,), or by the threat of such forcible compulsion
that would prevent resistance by a person of reasonable that would prevent resistance by a person of reasonable
resolution is, of course, a determination that will be made in resolution is, of course, a determination that will be made in
each case based upon the totality of the circumstances that each case based upon the totality of the circumstances that
have been presented to the fact finder. have been presented to the fact finder.
510 Pa. at 555, 510 A.2d at 1226 (citation omitted). 510 Pa. at 555, 510 A.2d at 1226 (citation omitted).
Significant factors to be weighed in that determination would include: Significant factors to be weighed in that determination would include:
the respective ages of the victim and the accused, the respective ages of the victim and the accused,
the respective mental and physical conditions of the victim and the the respective mental and physical conditions of the victim and the
accused, accused,
the atmosphere and physical setting in which the incident was alleged the atmosphere and physical setting in which the incident was alleged
to have taken place, to have taken place,
the extent to which the accused may have been in a position of the extent to which the accused may have been in a position of
authority, domination or custodial control over the victim, and authority, domination or custodial control over the victim, and
whether the victim was under duress. whether the victim was under duress.
This list of possible factors is by no means exclusive. This list of possible factors is by no means exclusive.
Commonwealth v. Rhodes, 510 Pa. 537, 555-556, 510 A.2d 1217, 1226 Commonwealth v. Rhodes, 510 Pa. 537, 555-556, 510 A.2d 1217, 1226
(1986). (1986).
C. IDSI When the Complainant is Unconscious or Unaware C. IDSI When the Complainant is Unconscious or Unaware

When the complainant is unconscious or the defendant knows that the When the complainant is unconscious or the defendant knows that the
complainant is unaware of the fact that sexual intercourse is occurring. complainant is unaware of the fact that sexual intercourse is occurring.
2. Lack of Consent13 2. Lack of Consent13
A victim who was sleeping when sexual intercourse was initiated is considered A victim who was sleeping when sexual intercourse was initiated is considered
unconscious. Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008), unconscious. Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008),
appeal denied, 600 Pa. 733, 963 A.2d 470 (2008) (decided under Rape statute). appeal denied, 600 Pa. 733, 963 A.2d 470 (2008) (decided under Rape statute).
While neither rape involving an unconscious person nor involuntary deviate While neither rape involving an unconscious person nor involuntary deviate
sexual intercourse with an unconscious person references a lack of consent sexual intercourse with an unconscious person references a lack of consent
as an element, in either circumstance, the absence of consent is assumed as an element, in either circumstance, the absence of consent is assumed
from the state of the victim. Commonwealth v. Buffington, 574 Pa. 29, 42, from the state of the victim. Commonwealth v. Buffington, 574 Pa. 29, 42,
828 A.2d 1024, 1032 (Pa. 2003). 828 A.2d 1024, 1032 (Pa. 2003).
D. IDSI When the Assailant has Impaired the Complainants Power to Resist D. IDSI When the Assailant has Impaired the Complainants Power to Resist

When the defendant has substantially impaired the complainants ability When the defendant has substantially impaired the complainants ability
to control his or her conduct through the use of drugs, intoxicants or to control his or her conduct through the use of drugs, intoxicants or
other means without the complainants knowledge. other means without the complainants knowledge.
E. IDSI When a Mental Disability Renders the Complainant Incapable of E. IDSI When a Mental Disability Renders the Complainant Incapable of
Consent Consent

When the complainant suffers from a mental disability which renders the When the complainant suffers from a mental disability which renders the
complainant incapable of consent; complainant incapable of consent;
The defendant acted intentionally, knowingly or recklessly as to the The defendant acted intentionally, knowingly or recklessly as to the
victims mental deficiency. victims mental deficiency.
13 For additional discussion, see Section 3.2(C), Rape When the Complainant is Unconscious or Unaware. 13 For additional discussion, see Section 3.2(C), Rape When the Complainant is Unconscious or Unaware.
2. Intent 2. Intent
The Superior Court held that the prosecution must prove that the defendant The Superior Court held that the prosecution must prove that the defendant
acted intentionally, knowingly or recklessly as to the victims mental acted intentionally, knowingly or recklessly as to the victims mental
deficiency. Commonwealth v. Thomson, 673 A.2d 357, 359 (Pa.Super. 1996), deficiency. Commonwealth v. Thomson, 673 A.2d 357, 359 (Pa.Super. 1996),
appeal denied, 546 Pa. 679, 686 A.2d 1310 (1996). See also, Commonwealth appeal denied, 546 Pa. 679, 686 A.2d 1310 (1996). See also, Commonwealth
v. Carter, 418 A.2d 537 (Pa.Super. 1980). v. Carter, 418 A.2d 537 (Pa.Super. 1980).
In Commonwealth v. Thomson, 673 A.2d 357 (Pa.Super. 1996), appeal In Commonwealth v. Thomson, 673 A.2d 357 (Pa.Super. 1996), appeal
denied, 546 Pa. 679, 686 A.2d 1310 (1996), a forensic psychiatrist testified denied, 546 Pa. 679, 686 A.2d 1310 (1996), a forensic psychiatrist testified
that the victim was incapable of consenting to sexual intercourse because that the victim was incapable of consenting to sexual intercourse because
she was mildly mentally retarded. The psychiatrist further testified that the she was mildly mentally retarded. The psychiatrist further testified that the
victims retardation was of the type noticeable by a lay person. There was no victims retardation was of the type noticeable by a lay person. There was no
rebuttal evidence by the defense as to the victims incapability to consent. The rebuttal evidence by the defense as to the victims incapability to consent. The
Superior Court affirmed the trial courts determination that the evidence was Superior Court affirmed the trial courts determination that the evidence was
sufficient to support the guilty verdict to Rape under former section 3121(4): sufficient to support the guilty verdict to Rape under former section 3121(4):
[a] person commits a felony of the first degree when he engages in sexual [a] person commits a felony of the first degree when he engages in sexual
intercourse with another person not his spouse: who is so mentally deranged intercourse with another person not his spouse: who is so mentally deranged
or deficient that such person is incapable of consent. or deficient that such person is incapable of consent.
F. IDSI With a Child Under Age 16 F. IDSI With a Child Under Age 16

When the complainant is less than 16 years of age and the defendant is When the complainant is less than 16 years of age and the defendant is
four or more years older than the complainant, and; four or more years older than the complainant, and;
the complainant and defendant are not married to each other. the complainant and defendant are not married to each other.
See Commonwealth v. A.W.C., 951 A.2d 1174, 1179 (Pa. Super. 2008), where See Commonwealth v. A.W.C., 951 A.2d 1174, 1179 (Pa. Super. 2008), where
the Superior Court noted that if a mistake of age defense is presented in a the Superior Court noted that if a mistake of age defense is presented in a
case where the statutory element requires the child to be below a critical age case where the statutory element requires the child to be below a critical age
older than 14, such as IDSI with a child under age 16, once it is proffered, the older than 14, such as IDSI with a child under age 16, once it is proffered, the
burden shifts to the Commonwealth to disprove the defense. burden shifts to the Commonwealth to disprove the defense.
G. IDSI With A Child Under Age 13 G. IDSI With A Child Under Age 13
18 Pa.Cons.Stat.Ann. 3123(b). 18 Pa.Cons.Stat.Ann. 3123(b).

When the complainant is less than 13 years of age. When the complainant is less than 13 years of age.
14 For additional discussion, see Section 3.2(F)(2), Mistake as to Age, and Section 3.3(C)(2), Mistake as to Age. 14 For additional discussion, see Section 3.2(F)(2), Mistake as to Age, and Section 3.3(C)(2), Mistake as to Age.
reasonably believed that child to be the age of 13 years or older. 18 Pa.Cons. reasonably believed that child to be the age of 13 years or older. 18 Pa.Cons.
Voluntary consent of the victim, however, is not a defense to corruption of Voluntary consent of the victim, however, is not a defense to corruption of
minors or voluntary deviate sexual intercourse. Appellant also stated that the minors or voluntary deviate sexual intercourse. Appellant also stated that the
victim said she was 16 years old, two years above the limit defining minority victim said she was 16 years old, two years above the limit defining minority
with respect to sex crimes. Even if justified, appellants mistaken belief as to with respect to sex crimes. Even if justified, appellants mistaken belief as to
the victims age was irrelevant. Commonwealth v. Hall, 418 A.2d 623, 624 the victims age was irrelevant. Commonwealth v. Hall, 418 A.2d 623, 624
(Pa. Super. 1980) (citations omitted). (Pa. Super. 1980) (citations omitted).
H. IDSI With a Child Under Age 13 and Resulting in Serious Bodily Injury H. IDSI With a Child Under Age 13 and Resulting in Serious Bodily Injury
18 Pa.Cons.Stat.Ann. 3123(c). 18 Pa.Cons.Stat.Ann. 3123(c).

The complainant is less than 13 years of age; and The complainant is less than 13 years of age; and
The complainant suffers serious bodily injury in the course of the offense. The complainant suffers serious bodily injury in the course of the offense.
2. Serious Bodily Injury16 2. Serious Bodily Injury16
Commonwealth v. Kerrigan, 920 A.2d 190 (Pa.Super. 2007), appeal denied, Commonwealth v. Kerrigan, 920 A.2d 190 (Pa.Super. 2007), appeal denied,
594 Pa. 676, 932 A.2d 1286 (2007): the transmission of HPV and genital warts 594 Pa. 676, 932 A.2d 1286 (2007): the transmission of HPV and genital warts
satisfies the serious bodily injury requirement because of the permanent satisfies the serious bodily injury requirement because of the permanent
nature of the disease and the fact that the victim risks passing the virus to nature of the disease and the fact that the victim risks passing the virus to
future sexual partners or children she may choose to have through the birth future sexual partners or children she may choose to have through the birth
canal, and because there is a strong link between HPV and cervical and other canal, and because there is a strong link between HPV and cervical and other
genital cancers. genital cancers.
reasonably believed that child to be the age of 13 years or older. 18 Pa.Cons. reasonably believed that child to be the age of 13 years or older. 18 Pa.Cons.
Voluntary consent of the victim, however, is not a defense to corruption of Voluntary consent of the victim, however, is not a defense to corruption of
minors or voluntary deviate sexual intercourse. Appellant also stated that the minors or voluntary deviate sexual intercourse. Appellant also stated that the
victim said she was 16 years old, two years above the limit defining minority victim said she was 16 years old, two years above the limit defining minority
with respect to sex crimes. Even if justified, appellants mistaken belief as to with respect to sex crimes. Even if justified, appellants mistaken belief as to
the victims age was irrelevant. Commonwealth v. Hall, 418 A.2d 623, 624 the victims age was irrelevant. Commonwealth v. Hall, 418 A.2d 623, 624
(Pa. Super. 1980) (citations omitted). (Pa. Super. 1980) (citations omitted).
16 Serious Bodily Injury is defined in Chapter 2, Section 2.2(E). 16 Serious Bodily Injury is defined in Chapter 2, Section 2.2(E).
I. Penalties I. Penalties
1. Involuntary Deviate Sexual Intercourse 1. Involuntary Deviate Sexual Intercourse
Any offense listed under 18 Pa.Cons.Stat.Ann. 3123(a) is graded as a Felony Any offense listed under 18 Pa.Cons.Stat.Ann. 3123(a) is graded as a Felony
of the First Degree. In accordance with 18 Pa.Cons. Stat.Ann. 1103, in the of the First Degree. In accordance with 18 Pa.Cons. Stat.Ann. 1103, in the
case of a felony of the first degree, a term of imprisonment shall be fixed by case of a felony of the first degree, a term of imprisonment shall be fixed by
the court at not more than 20 years, and, in accordance with 18 Pa.Cons.Stat. the court at not more than 20 years, and, in accordance with 18 Pa.Cons.Stat.
Ann. 1101, a fine not to exceed $ 25,000. Ann. 1101, a fine not to exceed $ 25,000.
2. Involuntary Deviate Sexual Intercourse with a Child Under Age 13 2. Involuntary Deviate Sexual Intercourse with a Child Under Age 13
Notwithstanding the general provisions regarding sentencing for a felony of Notwithstanding the general provisions regarding sentencing for a felony of
the first degree, a person convicted of involuntary deviate sexual intercourse the first degree, a person convicted of involuntary deviate sexual intercourse
with a child shall be sentenced to a term of imprisonment which shall be with a child shall be sentenced to a term of imprisonment which shall be
fixed by the court at no more than 40 years. 18 Pa.Cons.Stat.Ann. 3123(d) fixed by the court at no more than 40 years. 18 Pa.Cons.Stat.Ann. 3123(d)
(1). The fine remains the same for a felony of the first degree at not to exceed (1). The fine remains the same for a felony of the first degree at not to exceed
$ 25,000. $ 25,000.
3. Involuntary Deviate Sexual Intercourse with a Child Under Age 13 with 3. Involuntary Deviate Sexual Intercourse with a Child Under Age 13 with
Serious Bodily Injury Serious Bodily Injury
Notwithstanding the general provisions regarding sentencing for a felony of Notwithstanding the general provisions regarding sentencing for a felony of
the first degree, a person convicted of involuntary deviate sexual intercourse the first degree, a person convicted of involuntary deviate sexual intercourse
with a child resulting in serious bodily injury shall be sentenced up to a with a child resulting in serious bodily injury shall be sentenced up to a
maximum term of life imprisonment. 18 Pa.Cons.Stat.Ann. 3123(d)(2). The maximum term of life imprisonment. 18 Pa.Cons.Stat.Ann. 3123(d)(2). The
fine remains the same for a felony of the first degree at not to exceed $ 25,000. fine remains the same for a felony of the first degree at not to exceed $ 25,000.
4. Multiple Counts of IDSI 4. Multiple Counts of IDSI
If a defendant is convicted of multiple counts of IDSI under 18 Pa.Cons.Stat If a defendant is convicted of multiple counts of IDSI under 18 Pa.Cons.Stat
Ann. 3123 but they all arise from a single act, then the trial court may not Ann. 3123 but they all arise from a single act, then the trial court may not
sentence the defendant to separate sentences. Commonwealth v. Shannon, sentence the defendant to separate sentences. Commonwealth v. Shannon,
530 Pa. 279, 287-288, 608 A.2d 1020, 1024 (1992); Commonwealth v. 530 Pa. 279, 287-288, 608 A.2d 1020, 1024 (1992); Commonwealth v.
Dobbs, 682 A.2d 388, 391-392 (Pa. Super. 1996). Dobbs, 682 A.2d 388, 391-392 (Pa. Super. 1996).
5. Trafficking of Persons 5. Trafficking of Persons
A defendant who is convicted of Trafficking of Persons, 18 Pa. Cons. Stat. Ann. A defendant who is convicted of Trafficking of Persons, 18 Pa. Cons. Stat. Ann.
3002 while violating the Rape statute, 18 Pa.Cons. Stat.Ann. 3121 or the 3002 while violating the Rape statute, 18 Pa.Cons. Stat.Ann. 3121 or the
Involuntary Deviate Sexual Intercourse statute, 18 Pa.Cons.Stat.Ann. 3123 Involuntary Deviate Sexual Intercourse statute, 18 Pa.Cons.Stat.Ann. 3123
shall be sentenced up to a maximum term of life imprisonment. 42 Pa.Cons. shall be sentenced up to a maximum term of life imprisonment. 42 Pa.Cons.
Trafficking of Persons, 18 Pa. Cons. Stat. Ann. 3002(a), is violated if a Trafficking of Persons, 18 Pa. Cons. Stat. Ann. 3002(a), is violated if a
defendant knowingly traffics or attempts to traffic another person, knowing defendant knowingly traffics or attempts to traffic another person, knowing
that the other person will be subjected to forced labor or services. that the other person will be subjected to forced labor or services.
3.5 SEXUAL ASSAULT 3.5 SEXUAL ASSAULT
A. Statutory Citation and Elements A. Statutory Citation and Elements
18 Pa.Cons.Stat.Ann. 3124.1. 18 Pa.Cons.Stat.Ann. 3124.1.

The defendant engages in sexual intercourse or deviate sexual intercourse The defendant engages in sexual intercourse or deviate sexual intercourse
with a complainant; with a complainant;
Without the complainants consent. Without the complainants consent.
B. History B. History
Section 3124.1 was enacted to fill the loophole left by the rape and involuntary Section 3124.1 was enacted to fill the loophole left by the rape and involuntary
deviate sexual intercourse statutes by criminalizing non-consensual sex where deviate sexual intercourse statutes by criminalizing non-consensual sex where
the perpetrator employs little if no force. Commonwealth v. Pasley, 743 A.2d the perpetrator employs little if no force. Commonwealth v. Pasley, 743 A.2d
521, 524 n. 3 (Pa. Super. 1999), appeal denied, 563 Pa. 674, 759 A.2d 922 (2000); 521, 524 n. 3 (Pa. Super. 1999), appeal denied, 563 Pa. 674, 759 A.2d 922 (2000);
Aguilar v. Attorney General of U.S., 663 F.3d 692, 701 (3rd Cir. 2011). Aguilar v. Attorney General of U.S., 663 F.3d 692, 701 (3rd Cir. 2011).
This section of the Crimes Code, 18 Pa.Cons.Stat.Ann. 3124.1, was enacted in This section of the Crimes Code, 18 Pa.Cons.Stat.Ann. 3124.1, was enacted in
response to the Pennsylvania Supreme Courts decision in Commonwealth v. response to the Pennsylvania Supreme Courts decision in Commonwealth v.
Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994). The statute was intended to fill Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994). The statute was intended to fill
the loophole left by the Rape and IDSI statutes by criminalizing non-consensual the loophole left by the Rape and IDSI statutes by criminalizing non-consensual
sex where the perpetrator employs little or no force.18 See also Commonwealth sex where the perpetrator employs little or no force.18 See also Commonwealth
v. Buffington, 574 Pa. 29, 42 n.13, 828 A.2d 1024, 1032 n.13 (2003). v. Buffington, 574 Pa. 29, 42 n.13, 828 A.2d 1024, 1032 n.13 (2003).
C. Evidence C. Evidence
Victims uncorroborated testimony is sufficient evidence to support a sexual Victims uncorroborated testimony is sufficient evidence to support a sexual
assault conviction. Commonwealth v. Shaffer, 763 A.2d 411, 414 (Pa. Super. assault conviction. Commonwealth v. Shaffer, 763 A.2d 411, 414 (Pa. Super.
2000). 2000).
Circumstantial evidence may be used to show intent to commit sexual assault. Circumstantial evidence may be used to show intent to commit sexual assault.
Commonwealth v. Pasley, 743 A.2d 521 (Pa. Super. 1999), appeal denied, 563 Pa. Commonwealth v. Pasley, 743 A.2d 521 (Pa. Super. 1999), appeal denied, 563 Pa.
674, 759 A.2d 922 (2000). 674, 759 A.2d 922 (2000).
D. No Requirement of Resistance D. No Requirement of Resistance
In order to sustain a sexual assault conviction, resistance is not required. In order to sustain a sexual assault conviction, resistance is not required.
Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006), appeal Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006), appeal
denied, 592 Pa. 778, 926 A.2d 972 (2007); Commonwealth v. Smith, 863 A.2d denied, 592 Pa. 778, 926 A.2d 972 (2007); Commonwealth v. Smith, 863 A.2d
1172, 1176 (Pa. Super. 2004). 1172, 1176 (Pa. Super. 2004).
18 Theresa A. McNamara, Act 10: Remedying Problems of Pennsylvanias Rape Laws or Revisiting Them?, 10 Dick.L.Rev. 203, 210-214 18 Theresa A. McNamara, Act 10: Remedying Problems of Pennsylvanias Rape Laws or Revisiting Them?, 10 Dick.L.Rev. 203, 210-214
(1996). (1996).
E. Penalty E. Penalty
Sexual Assault is a felony of the second degree. The maximum incarceration Sexual Assault is a felony of the second degree. The maximum incarceration
sentence is up to 10 years and the maximum fine is up to $ 25,000. sentence is up to 10 years and the maximum fine is up to $ 25,000.
3.6 Institutional Sexual Assault 3.6 Institutional Sexual Assault
A. Institutional Sexual Assault A. Institutional Sexual Assault
18 Pa.Cons.Stat.Ann. 3124.2(a). 18 Pa.Cons.Stat.Ann. 3124.2(a).

f) other licensed residential facility serving children and youth, or f) other licensed residential facility serving children and youth, or
g) mental health or mental retardation facility or institution. g) mental health or mental retardation facility or institution.
The defendant engages in sexual intercourse, deviate sexual intercourse The defendant engages in sexual intercourse, deviate sexual intercourse
or indecent contact with an inmate, detainee, patient or resident; and or indecent contact with an inmate, detainee, patient or resident; and
The defendant acts intentionally, knowingly or recklessly as to the status The defendant acts intentionally, knowingly or recklessly as to the status
of their sexual partner as an inmate, detainee, patient, or resident. of their sexual partner as an inmate, detainee, patient, or resident.
Section 3124.2 is not unconstitutionally vague or broad. Commonwealth v. Section 3124.2 is not unconstitutionally vague or broad. Commonwealth v.
Budd, 821 A.2d 629, 631 (Pa. Super. 2003). Budd, 821 A.2d 629, 631 (Pa. Super. 2003).
2. Intent 2. Intent
The defendant must intentionally, knowingly or recklessly engage in The defendant must intentionally, knowingly or recklessly engage in
conduct with an inmate, detainee, patient, or resident. Commonwealth v. conduct with an inmate, detainee, patient, or resident. Commonwealth v.
Mayfield, 574 Pa. 460, 475, 832 A.2d 418, 427 (2003). Mayfield, 574 Pa. 460, 475, 832 A.2d 418, 427 (2003).
This statute must be read in connection with the provisions of 18 Pa.Cons. This statute must be read in connection with the provisions of 18 Pa.Cons.
Stat.Ann. 302 requiring culpability with respect to the crime. Therefore, the Stat.Ann. 302 requiring culpability with respect to the crime. Therefore, the
Commonwealth must prove that the defendant acted intentionally, knowingly, Commonwealth must prove that the defendant acted intentionally, knowingly,
recklessly or negligently that the victim is an inmate at the time the sexual recklessly or negligently that the victim is an inmate at the time the sexual
assault takes place. Commonwealth v. Budd, 821 A.2d 629, 631 (Pa. Super. assault takes place. Commonwealth v. Budd, 821 A.2d 629, 631 (Pa. Super.
2003). 2003).
Institutional Sexual Assault is a felony of the third degree. The maximum Institutional Sexual Assault is a felony of the third degree. The maximum
incarceration sentence is up to 7 years and the maximum fine is up to $ 10,000. incarceration sentence is up to 7 years and the maximum fine is up to $ 10,000.
B. Institutional Sexual Assault of a Minor B. Institutional Sexual Assault of a Minor
18 Pa.Cons.Stat.Ann. 3124.2(a.1). 18 Pa.Cons.Stat.Ann. 3124.2(a.1).

f) other licensed residential facility serving children and youth, or f) other licensed residential facility serving children and youth, or
g) mental health or mental retardation facility or institution. g) mental health or mental retardation facility or institution.
or indecent contact with an inmate, detainee, patient or resident; and or indecent contact with an inmate, detainee, patient or resident; and
The defendant acts intentionally, knowingly or recklessly as to the status The defendant acts intentionally, knowingly or recklessly as to the status
of their sexual partner as an inmate, detainee, patient, or resident, and of their sexual partner as an inmate, detainee, patient, or resident, and
The inmate, detainee, patient, or resident is under 18 years of age. The inmate, detainee, patient, or resident is under 18 years of age.
2. Intent 2. Intent
The defendant must intentionally, knowingly or recklessly engage in The defendant must intentionally, knowingly or recklessly engage in
conduct with an inmate, detainee, patient, or resident. Commonwealth v. conduct with an inmate, detainee, patient, or resident. Commonwealth v.
Mayfield, 574 Pa. 460, 475, 832 A.2d 418, 427 (2003). Mayfield, 574 Pa. 460, 475, 832 A.2d 418, 427 (2003).
C. Institutional Sexual Assault at a School C. Institutional Sexual Assault at a School
18 Pa.Cons.Stat.Ann. 3124.2(a.2). 18 Pa.Cons.Stat.Ann. 3124.2(a.2).

The defendant is a volunteer or an employee of a school, or The defendant is a volunteer or an employee of a school, or
Any other person who has direct contact with a student at a school; and Any other person who has direct contact with a student at a school; and
or indecent contact with a student of the school. or indecent contact with a student of the school.
D. Institutional Sexual Assault Child Care D. Institutional Sexual Assault Child Care
18 Pa. Cons. Stat. Ann. 3124.2(a.3). 18 Pa. Cons. Stat. Ann. 3124.2(a.3).
The defendant is a volunteer or an employee of a center for children; The defendant is a volunteer or an employee of a center for children;
or indecent contact with a child who is receiving services at the center. or indecent contact with a child who is receiving services at the center.
3.7 AGGRAVATED INDECENT ASSAULT 3.7 AGGRAVATED INDECENT ASSAULT
A. Aggravated Indecent Assault A. Aggravated Indecent Assault
18 Pa.Cons.Stat.Ann. 3125(a). 18 Pa.Cons.Stat.Ann. 3125(a).

The defendant engages in penetration, however slight, of the genitals or The defendant engages in penetration, however slight, of the genitals or
anus of a complainant with any part of the defendants body; anus of a complainant with any part of the defendants body;
for any purpose other than good faith medical, hygienic or law enforcement for any purpose other than good faith medical, hygienic or law enforcement
procedures; procedures;
under one or more of the following circumstances: under one or more of the following circumstances:
1) without consent from the complainant; or 1) without consent from the complainant; or
2) with forcible compulsion;19 2) with forcible compulsion;19
3) with threat of forcible compulsion that would prevent resistance by 3) with threat of forcible compulsion that would prevent resistance by
a person of reasonable resolution; or a person of reasonable resolution; or
4) when the complainant is unconscious or other circumstances 4) when the complainant is unconscious or other circumstances
where the defendant knows that the complainant is unaware that where the defendant knows that the complainant is unaware that
the penetration is occurring; or the penetration is occurring; or
5) the defendant has substantially impaired the complainants 5) the defendant has substantially impaired the complainants
or employing, without the knowledge of the complainant, drugs, or employing, without the knowledge of the complainant, drugs,
intoxicants or other means for the purpose of preventing resistance; intoxicants or other means for the purpose of preventing resistance;
or or
6) the complainant suffers from a mental disability which renders the 6) the complainant suffers from a mental disability which renders the
complainant incapable of consent; or complainant incapable of consent; or
7) the complainant is less than 13 years old; or 7) the complainant is less than 13 years old; or
8) the complainant is less than 16 years old, the defendant is four or 8) the complainant is less than 16 years old, the defendant is four or
more years older than the complainant, and the defendant and the more years older than the complainant, and the defendant and the
19 Forcible compulsion is defined in Chapter 2, section 2.2(C). 19 Forcible compulsion is defined in Chapter 2, section 2.2(C).
complainant are not married to each other. complainant are not married to each other.
2. Digital Penetration 2. Digital Penetration
Aggravated indecent assault includes evidence of digital penetration. Aggravated indecent assault includes evidence of digital penetration.
Commonwealth v. Kelley, 569 Pa. 179, 190, 801 A.2d 551, 557-558 (2002); Commonwealth v. Kelley, 569 Pa. 179, 190, 801 A.2d 551, 557-558 (2002);
Commonwealth v. Filer, 846 A.2d 139, 141 (Pa. Super. 2004), appeal denied, Commonwealth v. Filer, 846 A.2d 139, 141 (Pa. Super. 2004), appeal denied,
581 Pa. 671, 863 A.2d 1143 (2004). 581 Pa. 671, 863 A.2d 1143 (2004).
3. Victims Testimony 3. Victims Testimony
Victims uncorroborated testimony is sufficient evidence to support an Victims uncorroborated testimony is sufficient evidence to support an
aggravated indecent assault conviction. Commonwealth v. Filer, 846 A.2d aggravated indecent assault conviction. Commonwealth v. Filer, 846 A.2d
139, 141-142 (Pa. Super. 2004), appeal denied, 581 Pa. 671, 863 A.2d 1143 139, 141-142 (Pa. Super. 2004), appeal denied, 581 Pa. 671, 863 A.2d 1143
(2004); Commonwealth v. Shaffer, 763 A.2d 411, 414-415 (Pa. Super. 2000). (2004); Commonwealth v. Shaffer, 763 A.2d 411, 414-415 (Pa. Super. 2000).
Aggravated indecent assault is a felony of the second degree. The maximum Aggravated indecent assault is a felony of the second degree. The maximum
incarceration sentence is up to 10 years and the maximum fine is up to $ incarceration sentence is up to 10 years and the maximum fine is up to $
25,000. 25,000.
B. Aggravated Indecent Assault of a Child B. Aggravated Indecent Assault of a Child
18 Pa Cons.Stat.Ann. 3125(b). 18 Pa Cons.Stat.Ann. 3125(b).

A violation of subsections (a)(1)-(6) and A violation of subsections (a)(1)-(6) and
The complainant is under 13 years old. The complainant is under 13 years old.
Aggravated indecent assault of a child is a Felony of the First Degree, and the Aggravated indecent assault of a child is a Felony of the First Degree, and the
maximum incarceration sentence is up to 20 years, and the maximum fine is maximum incarceration sentence is up to 20 years, and the maximum fine is
up to $ 25,000. up to $ 25,000.
3.8 INDECENT ASSAULT 3.8 INDECENT ASSAULT
Types of Indecent Assault: Statutory Elements Types of Indecent Assault: Statutory Elements
18 Pa.Cons.Stat.Ann. 3126 18 Pa.Cons.Stat.Ann. 3126

The defendant causes the complainant to have indecent contact with the The defendant causes the complainant to have indecent contact with the
defendant, or defendant, or
The defendant intentionally causes the complainant to come into contact The defendant intentionally causes the complainant to come into contact
with seminal fluid, urine or feces for the purpose of arousing sexual desire with seminal fluid, urine or feces for the purpose of arousing sexual desire
in the defendant or the complainant; and in the defendant or the complainant; and
Under one or more of the following circumstances: Under one or more of the following circumstances:
(1) the defendant does so without the complainants consent; (1) the defendant does so without the complainants consent;
(2) the defendant does so by forcible compulsion; (2) the defendant does so by forcible compulsion;
(3) the defendant does so by threat of forcible compulsion that (3) the defendant does so by threat of forcible compulsion that
would prevent resistance by a person of reasonable resolution; would prevent resistance by a person of reasonable resolution;
(4) the complainant is unconscious or the defendant knows that the (4) the complainant is unconscious or the defendant knows that the
complainant is unaware that the indecent contact is occurring; complainant is unaware that the indecent contact is occurring;
(5) the defendant has substantially impaired the complainants (5) the defendant has substantially impaired the complainants
or employing, without the knowledge of the complainant, or employing, without the knowledge of the complainant,
drugs, intoxicants or other means for the purpose of preventing drugs, intoxicants or other means for the purpose of preventing
resistance; resistance;
(6) the complainant suffers from a mental disability which renders (6) the complainant suffers from a mental disability which renders
the complainant incapable of consent; the complainant incapable of consent;
(7) the complainant is less than 13 years of age; or (7) the complainant is less than 13 years of age; or
(8) the complainant is less than 16 years of age and the person is four (8) the complainant is less than 16 years of age and the person is four
or more years older than the complainant and the complainant or more years older than the complainant and the complainant
and the person are not married to each other. and the person are not married to each other.
A. Indecent Assault A. Indecent Assault
18 Pa.Cons.Stat.Ann. 3126(a)(1) 18 Pa.Cons.Stat.Ann. 3126(a)(1)

the defendant does so without the complainants consent. the defendant does so without the complainants consent.
An offense under subsection (a)(1) is a misdemeanor of the second degree. An offense under subsection (a)(1) is a misdemeanor of the second degree.
Misdemeanors of the second degree carry a maximum incarceration sentence Misdemeanors of the second degree carry a maximum incarceration sentence
of 2 years, and a maximum fine of $ 5,000. of 2 years, and a maximum fine of $ 5,000.
B. Indecent Assault by Forcible Compulsion B. Indecent Assault by Forcible Compulsion

the defendant does so by forcible compulsion. the defendant does so by forcible compulsion.
An offense under subsection (a)(2) is a misdemeanor of the first degree. An offense under subsection (a)(2) is a misdemeanor of the first degree.
Misdemeanors of the First Degree carry a maximum incarceration sentence Misdemeanors of the First Degree carry a maximum incarceration sentence
of up to 5 years, and a maximum fine of up to $ 10,000. of up to 5 years, and a maximum fine of up to $ 10,000.
C. Indecent Assault by Threat of Forcible Compulsion C. Indecent Assault by Threat of Forcible Compulsion

the defendant does so by threat of forcible compulsion that would prevent the defendant does so by threat of forcible compulsion that would prevent
resistance by a person of reasonable resolution. resistance by a person of reasonable resolution.
D. Indecent Assault When the Complainant is Unconscious or Unaware D. Indecent Assault When the Complainant is Unconscious or Unaware

the complainant is unconscious or the defendant knows that the the complainant is unconscious or the defendant knows that the
complainant is unaware that the indecent contact is occurring. complainant is unaware that the indecent contact is occurring.
An offense under subsection (a) (4) is a misdemeanor of the first degree. An offense under subsection (a) (4) is a misdemeanor of the first degree.
E. Indecent Assault When the Assailant Has Impaired the Complainants E. Indecent Assault When the Assailant Has Impaired the Complainants
Power to Resist Power to Resist

The defendant has substantially impaired the complainants power to The defendant has substantially impaired the complainants power to
appraise or control his or her conduct by administering or employing, appraise or control his or her conduct by administering or employing,
means for the purpose of preventing resistance. means for the purpose of preventing resistance.
F. Indecent Assault When a Mental Disability Renders the Complainant F. Indecent Assault When a Mental Disability Renders the Complainant
Incapable of Consent Incapable of Consent

the complainant suffers from a mental disability which renders the the complainant suffers from a mental disability which renders the
complainant incapable of consent. complainant incapable of consent.
G. Indecent Assault of a Child Under 13 Years of Age G. Indecent Assault of a Child Under 13 Years of Age
18 Pa.Cons.Stat.Ann. 3126 (a)(7) 18 Pa.Cons.Stat.Ann. 3126 (a)(7)

The complainant is less than 13 years of age. The complainant is less than 13 years of age.
Misdemeanor: Indecent assault when the complainant is under the age of 13 Misdemeanor: Indecent assault when the complainant is under the age of 13
under subsection (a)(7) is a misdemeanor of the first degree. The maximum under subsection (a)(7) is a misdemeanor of the first degree. The maximum
incarceration sentence is up to 5 years, and the maximum fine is up to $ incarceration sentence is up to 5 years, and the maximum fine is up to $
10,000. 10,000.
Felony: However, if any of the following apply, it is a felony of the third degree: Felony: However, if any of the following apply, it is a felony of the third degree:
(i) It is a second or subsequent offense. (i) It is a second or subsequent offense.
(ii) There has been a course of conduct of indecent assault by the (ii) There has been a course of conduct of indecent assault by the
defendant. defendant.
(iii) The indecent assault was committed by touching the complainants (iii) The indecent assault was committed by touching the complainants
sexual or intimate parts with sexual or intimate parts of the defendant. sexual or intimate parts with sexual or intimate parts of the defendant.
(iv) The indecent assault is committed by touching the defendants sexual (iv) The indecent assault is committed by touching the defendants sexual
or intimate parts with the complainants sexual or intimate parts. or intimate parts with the complainants sexual or intimate parts.
In the event that it is classified as a felony of the third degree, the penalty In the event that it is classified as a felony of the third degree, the penalty
is maximum incarceration of up to 7 years, and a maximum fine of up to $ is maximum incarceration of up to 7 years, and a maximum fine of up to $
15,000. 15,000.
H. Indecent Assault of a Child Under 16 Years of Age H. Indecent Assault of a Child Under 16 Years of Age

The complainant is less than 16 years of age, and The complainant is less than 16 years of age, and
The defendant is four or more years older than the complainant and The defendant is four or more years older than the complainant and
The complainant and the defendant are not married to each other. The complainant and the defendant are not married to each other.
An offense under subsection (a) (8) is a misdemeanor of the second degree. An offense under subsection (a) (8) is a misdemeanor of the second degree.
Misdemeanors of the second degree carry a maximum incarceration sentence Misdemeanors of the second degree carry a maximum incarceration sentence
of 2 years, and a maximum fine of $ 5,000. of 2 years, and a maximum fine of $ 5,000.
I. Types of Evidence I. Types of Evidence
In the context of a Protection from Abuse case, the Superior Court found the In the context of a Protection from Abuse case, the Superior Court found the
evidence sufficient that Father had indecently assaulted Mother when he, without evidence sufficient that Father had indecently assaulted Mother when he, without
her consent, grabbed her breasts and crotch while making lascivious comments her consent, grabbed her breasts and crotch while making lascivious comments
such as, You know you like it. Thompson v. Thompson, 963 A.2d 474, 478 (Pa. such as, You know you like it. Thompson v. Thompson, 963 A.2d 474, 478 (Pa.
Super. 2008). Super. 2008).
Evidence was sufficient to support conviction of indecent assault when the Evidence was sufficient to support conviction of indecent assault when the
defendant, an adult whose age was not disclosed in the opinion, told an eleven defendant, an adult whose age was not disclosed in the opinion, told an eleven
year old girl that she was sexy, and then hugged her, and kissed her and stuck year old girl that she was sexy, and then hugged her, and kissed her and stuck
his tongue into her mouth. Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. his tongue into her mouth. Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
Indecent contact occurs when any part of the victims body comes into contact Indecent contact occurs when any part of the victims body comes into contact
with a sexual or intimate part of the defendants body, without the victims with a sexual or intimate part of the defendants body, without the victims
consent, for the purpose of arousing or gratifying sexual desire in either person. consent, for the purpose of arousing or gratifying sexual desire in either person.
See Commonwealth v. Grayson, 549 A.2d 593, 596 (Pa. Super. 1988) (sufficient See Commonwealth v. Grayson, 549 A.2d 593, 596 (Pa. Super. 1988) (sufficient
evidence was the brushing of defendants penis against the underside of the evidence was the brushing of defendants penis against the underside of the
victims jaw). victims jaw).
The phrase other intimate parts does not refer solely to genitalia includes The phrase other intimate parts does not refer solely to genitalia includes
other erogenous zones. Commonwealth v. Capo, 727 A.2d 1126 (Pa. Super. other erogenous zones. Commonwealth v. Capo, 727 A.2d 1126 (Pa. Super.
1999), appeal denied, 561 Pa. 667, 749 A.2d 465 (2000) (sufficient evidence was 1999), appeal denied, 561 Pa. 667, 749 A.2d 465 (2000) (sufficient evidence was
the defendant rubbed the victims shoulders, back and stomach and attempted to the defendant rubbed the victims shoulders, back and stomach and attempted to
forcibly kiss her on the mouth). Also, indecent assault is not dependent upon the forcibly kiss her on the mouth). Also, indecent assault is not dependent upon the
defendants success. Id. defendants success. Id.
Indecent contact includes contact over clothing, and is not dependent upon Indecent contact includes contact over clothing, and is not dependent upon
skin-to-skin contact. Commonwealth v. Ricco, 650 A.2d 1084 (Pa. Super. 1994) skin-to-skin contact. Commonwealth v. Ricco, 650 A.2d 1084 (Pa. Super. 1994)
(sufficient evidence when defendant placed victims hand on his underwear-clad (sufficient evidence when defendant placed victims hand on his underwear-clad
genitals). genitals).
Victims uncorroborated testimony is sufficient evidence to support an indecent Victims uncorroborated testimony is sufficient evidence to support an indecent
assault conviction. Commonwealth v. Shaffer, 763 A.2d 411 (Pa. Super. 2000). assault conviction. Commonwealth v. Shaffer, 763 A.2d 411 (Pa. Super. 2000).
J. Mental Disability J. Mental Disability
When the complainant has a mental disability which makes her incapable of When the complainant has a mental disability which makes her incapable of
consent, the Commonwealth has no burden of proving defendant knew the consent, the Commonwealth has no burden of proving defendant knew the
victims mental status. Commonwealth v. Crosby, 791 A.2d 366, 369-370 (Pa. victims mental status. Commonwealth v. Crosby, 791 A.2d 366, 369-370 (Pa.
Super. 2002). Super. 2002).
K. Youthful Victim K. Youthful Victim
Evidence supported conviction for indecent assault based upon six year old Evidence supported conviction for indecent assault based upon six year old
victims testimony that defendant, her father, pulled her pajamas down while victims testimony that defendant, her father, pulled her pajamas down while
she was in his room, told her his pee-pee hurt, put his penis in her bottom, and she was in his room, told her his pee-pee hurt, put his penis in her bottom, and
told her not to tell anybody. Commonwealth v. Cesar, 911 A.2d 978, 986 (Pa. told her not to tell anybody. Commonwealth v. Cesar, 911 A.2d 978, 986 (Pa.
3.9 INDECENT EXPOSURE 3.9 INDECENT EXPOSURE

The defendant exposes his or her genitals in any public place; or The defendant exposes his or her genitals in any public place; or
The defendant exposes his or her genitals in any place where there are The defendant exposes his or her genitals in any place where there are
other persons present whom the defendant knows or should know that this other persons present whom the defendant knows or should know that this
conduct is likely to offend, affront, or alarm. conduct is likely to offend, affront, or alarm.
B. Evidence B. Evidence
Affront or Alarm: The prosecution is not required to prove that affront or alarm Affront or Alarm: The prosecution is not required to prove that affront or alarm
was actually caused for the purposes of conviction for indecent exposure; it is was actually caused for the purposes of conviction for indecent exposure; it is
sufficient for the evidence to show that a defendant knew or should have known sufficient for the evidence to show that a defendant knew or should have known
that his conduct was likely to cause affront or alarm. Commonwealth v. Tiffany, that his conduct was likely to cause affront or alarm. Commonwealth v. Tiffany,
(2008). (2008).
Location of Offense: There must be evidence that the exposure was (1) in Location of Offense: There must be evidence that the exposure was (1) in
a public place or (2) that the defendant knew or should have known that the a public place or (2) that the defendant knew or should have known that the
exposure was in the presence of others and that it would offend, affront or alarm. exposure was in the presence of others and that it would offend, affront or alarm.
See Commonwealth v. DeWalt, 752 A.2d 915, 917 (Pa.Super. 2000) (Evidence See Commonwealth v. DeWalt, 752 A.2d 915, 917 (Pa.Super. 2000) (Evidence
was insufficient to demonstrate that the defendants dance on her back porch was insufficient to demonstrate that the defendants dance on her back porch
was done in the presence of others the alleged victims, three young boys, were was done in the presence of others the alleged victims, three young boys, were
watching from the roof of a shed in a neighboring yard. The back porch was watching from the roof of a shed in a neighboring yard. The back porch was
definitely not in a public place.). definitely not in a public place.).
Location of Offense: Evidence was sufficient when the defendant was Location of Offense: Evidence was sufficient when the defendant was
unconscious in his car in a drive-thru lane of McDonalds restaurant, with his unconscious in his car in a drive-thru lane of McDonalds restaurant, with his
penis exposed. Commonwealth v. Thiry, 919 A.2d 961 (Pa. Super. 2007), 594 Pa. penis exposed. Commonwealth v. Thiry, 919 A.2d 961 (Pa. Super. 2007), 594 Pa.
679, 932 A.2d 1288 (2007). 679, 932 A.2d 1288 (2007).
C. Penalties C. Penalties
1. Children Involved: If the defendant knew or should have known that any 1. Children Involved: If the defendant knew or should have known that any
of the persons present were under the age of 16, indecent exposure is a of the persons present were under the age of 16, indecent exposure is a
misdemeanor of the first degree. The maximum incarceration sentence is up misdemeanor of the first degree. The maximum incarceration sentence is up
to five years, and the maximum fine is up to $10,000. to five years, and the maximum fine is up to $10,000.
2. Other Cases: In all other circumstances, indecent exposure is a misdemeanor 2. Other Cases: In all other circumstances, indecent exposure is a misdemeanor
of the second degree. The maximum incarceration sentence is up to two of the second degree. The maximum incarceration sentence is up to two
years, and the maximum fine is up to $5,000. years, and the maximum fine is up to $5,000.
3.10 INCEST 3.10 INCEST
A. Incest A. Incest
18 Pa.Cons.Stat.Ann. 4302(a) 18 Pa.Cons.Stat.Ann. 4302(a)

Any of the following: Any of the following:
e) a nephew or niece of the whole blood. e) a nephew or niece of the whole blood.
The relationships referred to in this section include blood relationships The relationships referred to in this section include blood relationships
without regard to legitimacy and relationship of parent and child by adoption. without regard to legitimacy and relationship of parent and child by adoption.
2. Definitions 2. Definitions
Cohabit is defined in 18 Pa.Cons.Stat.Ann. 103 as To live together under Cohabit is defined in 18 Pa.Cons.Stat.Ann. 103 as To live together under
the representation or appearance of being married. the representation or appearance of being married.
Sexual Intercourse refers to the definition of sexual intercourse in 18 Pa. Sexual Intercourse refers to the definition of sexual intercourse in 18 Pa.
Cons. Stat. Ann. 3101, which includes vaginal, anal and oral intercourse. Cons. Stat. Ann. 3101, which includes vaginal, anal and oral intercourse.
Commonwealth v. Fouse, 612 A.2d 1067, 1069 (Pa.Super. 1992), appeal Commonwealth v. Fouse, 612 A.2d 1067, 1069 (Pa.Super. 1992), appeal
3. Gender-Neutral 3. Gender-Neutral
The incest statute is a gender-neutral crime which proscribes the stated The incest statute is a gender-neutral crime which proscribes the stated
conduct against males and females. Commonwealth v. K.M., 680 A.2d 1168, conduct against males and females. Commonwealth v. K.M., 680 A.2d 1168,
1171 (Pa.Super. 1996). 1171 (Pa.Super. 1996).
4. Prohibited Marriage Licenses 4. Prohibited Marriage Licenses
Pennsylvania law provides that no marriage license may be issued to Pennsylvania law provides that no marriage license may be issued to
applicants within the prohibited degrees of consanguinity as follows: applicants within the prohibited degrees of consanguinity as follows:
a man may not marry his mother; a man may not marry his mother;
a man may not marry the sister of his father; a man may not marry the sister of his father;
a man may not marry the sister of his mother; a man may not marry the sister of his mother;
a man may not marry his sister; a man may not marry his sister;
a man may not marry his daughter; a man may not marry his daughter;
a man may not marry the daughter of his son or daughter; a man may not marry the daughter of his son or daughter;
a man may not marry his first cousin; a man may not marry his first cousin;
a woman may not marry her father; a woman may not marry her father;
a woman may not marry the brother of her father; a woman may not marry the brother of her father;
a woman may not marry the brother of her mother; a woman may not marry the brother of her mother;
a woman may not marry her brother; a woman may not marry her brother;
a woman may not marry her son; a woman may not marry her son;
a woman may not marry the son of her son or daughter; a woman may not marry the son of her son or daughter;
a woman may not marry her first cousin. a woman may not marry her first cousin.
B. Incest of a Minor B. Incest of a Minor
18 Pa.Cons.Stat.Ann. 4302(b) 18 Pa.Cons.Stat.Ann. 4302(b)

Any of the following if they are under the age of 13 or between 13 and 18 Any of the following if they are under the age of 13 or between 13 and 18
years of age and the defendant is four or more years older: years of age and the defendant is four or more years older:
e) a nephew or niece of the whole blood, and e) a nephew or niece of the whole blood, and
The relationships referred to in this section include blood relationships The relationships referred to in this section include blood relationships
without regard to legitimacy and relationship of parent and child by adoption. without regard to legitimacy and relationship of parent and child by adoption.
2. Evidence 2. Evidence
The uncorroborated testimony of a sexual assault victim, including a victim The uncorroborated testimony of a sexual assault victim, including a victim
of incest, if believed by the trier of fact, is sufficient to convict a defendant, of incest, if believed by the trier of fact, is sufficient to convict a defendant,
despite contrary evidence from defense witnesses. Commonwealth v. despite contrary evidence from defense witnesses. Commonwealth v.
Charlton, 902 A.2d 554, 562 (Pa. Super. 2006), appeal denied, 590 Pa. 655, Charlton, 902 A.2d 554, 562 (Pa. Super. 2006), appeal denied, 590 Pa. 655,
911 A.2d 933 (2006). 911 A.2d 933 (2006).
In an incest trial, the victim may testify about incidents of sexual abuse other In an incest trial, the victim may testify about incidents of sexual abuse other
than those mentioned in the indictment: than those mentioned in the indictment:
It is clear that in a prosecution for incest it is competent It is clear that in a prosecution for incest it is competent
for the commonwealth to introduce evidence of illicit for the commonwealth to introduce evidence of illicit
relations between the parties prior to the commission of the relations between the parties prior to the commission of the
specific offense laid in the indictment. Commonwealth v. specific offense laid in the indictment. Commonwealth v.
Buser, 277 Pa.Super. 451, 455, 419 A.2d 1233, 1235 (1980) Buser, 277 Pa.Super. 451, 455, 419 A.2d 1233, 1235 (1980)
(quoting Commonwealth v. Bell, 166 Pa. 405, 411, 31 A. 123, (quoting Commonwealth v. Bell, 166 Pa. 405, 411, 31 A. 123,
123 (1895), and Commonwealth v. Leppard, 271 Pa.Super. 123 (1895), and Commonwealth v. Leppard, 271 Pa.Super.
317, 319, 413 A.2d 424, 425 (1979)). Such testimony is 317, 319, 413 A.2d 424, 425 (1979)). Such testimony is
relevant to show a passion or propensity for illicit sexual relevant to show a passion or propensity for illicit sexual
relations with the particular person concerned in the crime relations with the particular person concerned in the crime
on trial. Commonwealth v. Buser, 277 Pa.Super. at 455, on trial. Commonwealth v. Buser, 277 Pa.Super. at 455,
419 A.2d at 1235 (quoting McCormick on Evidence 190 419 A.2d at 1235 (quoting McCormick on Evidence 190
at 449 (Cleary ed. 1972)). Nor does the fact that Jeanette at 449 (Cleary ed. 1972)). Nor does the fact that Jeanette
could not remember the exact dates of previous sexual could not remember the exact dates of previous sexual
attacks render the testimony inadmissible. attacks render the testimony inadmissible.
Commonwealth v. Ritchie, 472 A.2d 220, 223 (Pa. Super. 1984), remanded on Commonwealth v. Ritchie, 472 A.2d 220, 223 (Pa. Super. 1984), remanded on
other grounds, 509 Pa. 357, 502 A.2d 148 (1985). other grounds, 509 Pa. 357, 502 A.2d 148 (1985).
Grading: Incest and Incest of a Minor are felonies of the second degree. The Grading: Incest and Incest of a Minor are felonies of the second degree. The
maximum incarceration sentence is up to ten years, and the maximum fine is up maximum incarceration sentence is up to ten years, and the maximum fine is up
to $25,000. to $25,000.
3.11 INVASION OF PRIVACY 3.11 INVASION OF PRIVACY
This section is Pennsylvanias response to the increasingly prevalent act of This section is Pennsylvanias response to the increasingly prevalent act of
voyeurism, and proscribes the secret viewing, photographing or otherwise filming/ voyeurism, and proscribes the secret viewing, photographing or otherwise filming/
recording of a person dressing or undressing or of the sexual or other intimate parts recording of a person dressing or undressing or of the sexual or other intimate parts
of a person at a place and time when the other person has a reasonable expectation of of a person at a place and time when the other person has a reasonable expectation of
privacy. For more detailed information, see Protecting Traditional Privacy Rights in a privacy. For more detailed information, see Protecting Traditional Privacy Rights in a
Brave New Digital World: The Threat Posed By Cellular Phone-Cameras and What States Brave New Digital World: The Threat Posed By Cellular Phone-Cameras and What States
Should Do To Stop It, 111 Penn St. L. Rev. 739, 757 (2007); Marjorie A. Shields, Criminal Should Do To Stop It, 111 Penn St. L. Rev. 739, 757 (2007); Marjorie A. Shields, Criminal
Prosecution of Video or Photographic Voyeurism, 120 A.L.R.5th 337 (2004). Prosecution of Video or Photographic Voyeurism, 120 A.L.R.5th 337 (2004).
A. Statutory Citation A. Statutory Citation
B. Statutory Elements B. Statutory Elements

Secretly Viewing or Recording of Full or Partial Nude Person, 18 Pa.Cons. Secretly Viewing or Recording of Full or Partial Nude Person, 18 Pa.Cons.
Stat.Ann. 7507.1(a)(1). Stat.Ann. 7507.1(a)(1).
1) A person knowingly views, photographs, videotapes, electronically 1) A person knowingly views, photographs, videotapes, electronically
depicts, films or otherwise records; depicts, films or otherwise records;
2) For the purposes of arousing or gratifying the sexual desire of any person; 2) For the purposes of arousing or gratifying the sexual desire of any person;
3) Another person 3) Another person
a) without that persons knowledge and consent; a) without that persons knowledge and consent;
b) while that person is in a state of full or partial nudity; b) while that person is in a state of full or partial nudity;
c) at a place where that person would have a reasonable expectation of c) at a place where that person would have a reasonable expectation of
privacy. privacy.
Full or Partial Nudity means a display of: Full or Partial Nudity means a display of:
all or any part of the human genitals or pubic area or buttocks; all or any part of the human genitals or pubic area or buttocks;
any part of the nipple of the breast of any female, with less than a any part of the nipple of the breast of any female, with less than a
fully opaque covering. fully opaque covering.
Place where a person would have a reasonable expectation of privacy Place where a person would have a reasonable expectation of privacy
includes a location where a reasonable person would believe that he could includes a location where a reasonable person would believe that he could
disrobe in privacy without being concerned that his undressing was being disrobe in privacy without being concerned that his undressing was being
viewed, photographed or filmed by another. viewed, photographed or filmed by another.
Secretly Viewing or Recording of Intimate Parts of Another Person, 18 Secretly Viewing or Recording of Intimate Parts of Another Person, 18
Pa.Cons.Stat.Ann. 7507.1(a)(2). Pa.Cons.Stat.Ann. 7507.1(a)(2).
1) A person knowingly views or photographs, videotapes, electronically 1) A person knowingly views or photographs, videotapes, electronically
depicts, films or otherwise records; depicts, films or otherwise records;
3) The intimate parts of another person 3) The intimate parts of another person
a) whether or not covered by clothing a) whether or not covered by clothing
b) without that persons knowledge and consent, b) without that persons knowledge and consent,
4) Which intimate parts that person does not intend to be visible by normal 4) Which intimate parts that person does not intend to be visible by normal
public observation public observation
Intimate parts means parts of the body not intended to be visible by normal Intimate parts means parts of the body not intended to be visible by normal
public observation, including: public observation, including:
The human genitals, pubic area or buttocks; The human genitals, pubic area or buttocks;
The nipple of a female breast. The nipple of a female breast.
Transfer of Image, 18 Pa.Cons.Stat.Ann. 7507.1(a)(3). Transfer of Image, 18 Pa.Cons.Stat.Ann. 7507.1(a)(3).
1) A person knowingly transfers or transmits an image obtained in violation 1) A person knowingly transfers or transmits an image obtained in violation
of either section above; of either section above;
3) By any of the following: 3) By any of the following:
a) live or recorded telephone message, a) live or recorded telephone message,
b) electronic mail, b) electronic mail,
c) the Internet, or c) the Internet, or
d) by any other transfer of the medium on which the image is stored. d) by any other transfer of the medium on which the image is stored.
C. Multiple Violations C. Multiple Violations
A separate violation of this section occurs for: A separate violation of this section occurs for:
Multiple Victims: each victim of an offense defined herein pursuant to one Multiple Victims: each victim of an offense defined herein pursuant to one
scheme or course of conduct whether at the same or different times; or scheme or course of conduct whether at the same or different times; or
Multiple Occasions: each occasion that a person is a victim during a separate Multiple Occasions: each occasion that a person is a victim during a separate
course of conduct either individually or otherwise. course of conduct either individually or otherwise.
D. Penalties D. Penalties
1. Multiple Violations: Invasion of privacy is a misdemeanor of the second 1. Multiple Violations: Invasion of privacy is a misdemeanor of the second
degree if there is more than one violation. The maximum incarceration degree if there is more than one violation. The maximum incarceration
sentence is two years, and the maximum fine is $5,000. 18 Pa.Cons.Stat.Ann. sentence is two years, and the maximum fine is $5,000. 18 Pa.Cons.Stat.Ann.
7507.1(b). 7507.1(b).
2. Other Cases: All other categories of Invasion of Privacy are misdemeanors 2. Other Cases: All other categories of Invasion of Privacy are misdemeanors
of the third degree. The maximum incarceration sentence is one year, and the of the third degree. The maximum incarceration sentence is one year, and the
maximum fine is $2,500. 18 Pa.Cons.Stat.Ann. 7507.1(b). maximum fine is $2,500. 18 Pa.Cons.Stat.Ann. 7507.1(b).
E. Exclusions for Legitimate Law Enforcement Conduct E. Exclusions for Legitimate Law Enforcement Conduct
This section does not apply if the conduct is done by any of the following: This section does not apply if the conduct is done by any of the following:
Law enforcement officers during a lawful criminal investigation; or Law enforcement officers during a lawful criminal investigation; or
Law enforcement officers or by personnel of the Department of Corrections Law enforcement officers or by personnel of the Department of Corrections
or a local correctional facility, prison or jail for security purposes or or a local correctional facility, prison or jail for security purposes or
during investigation of alleged misconduct by a person in the custody of during investigation of alleged misconduct by a person in the custody of
the department or local authorities. the department or local authorities.
F. Definition of Photographs or Films F. Definition of Photographs or Films
Photographs or films. Making any photograph, motion picture film, videotape Photographs or films. Making any photograph, motion picture film, videotape
or any other recording or transmission of the image of a person. 18 Pa.Cons.Stat. or any other recording or transmission of the image of a person. 18 Pa.Cons.Stat.
Ann. 7507.1 Ann. 7507.1
3.12 SEXUAL INTERCOURSE WITH ANIMAL 3.12 SEXUAL INTERCOURSE WITH ANIMAL

The defendant engages in any form of sexual intercourse with an animal The defendant engages in any form of sexual intercourse with an animal
B. History B. History
In Kuch v. Rapelje, 2010 WL 3419823 *11 (E.D.Mich. 2010), reported that at In Kuch v. Rapelje, 2010 WL 3419823 *11 (E.D.Mich. 2010), reported that at
least 33 states currently have statutes prohibiting bestiality. least 33 states currently have statutes prohibiting bestiality.
C. Penalty C. Penalty
Sexual Intercourse with Animal is a misdemeanor of the second degree. The Sexual Intercourse with Animal is a misdemeanor of the second degree. The
maximum incarceration sentence is up to two years, and the maximum fine is up maximum incarceration sentence is up to two years, and the maximum fine is up
to $5,000. to $5,000.
3.13 CRIMINAL ATTEMPT, CONSPIRACY OR SOLICITATION 3.13 CRIMINAL ATTEMPT, CONSPIRACY OR SOLICITATION
A. Statutory Citations A. Statutory Citations
18 Pa.Cons.Stat.Ann. 901 (Criminal Attempt), 902 (Criminal Solicitation) and 18 Pa.Cons.Stat.Ann. 901 (Criminal Attempt), 902 (Criminal Solicitation) and
903 (Criminal Conspiracy). 903 (Criminal Conspiracy).
B. Definition of Inchoate Offenses B. Definition of Inchoate Offenses
18 Pa.Cons.stat.ann. 901. Criminal attempt 18 Pa.Cons.stat.ann. 901. Criminal attempt
(a) Definition of attempt.--A person commits an attempt (a) Definition of attempt.--A person commits an attempt
when, with intent to commit a specific crime, he does when, with intent to commit a specific crime, he does
any act which constitutes a substantial step toward the any act which constitutes a substantial step toward the
commission of that crime. commission of that crime.
18 Pa.Cons.stat.ann. 902. Criminal Solicitation 18 Pa.Cons.stat.ann. 902. Criminal Solicitation
(a) Definition of solicitation. A person is guilty of (a) Definition of solicitation. A person is guilty of
solicitation to commit a crime if with the intent of promoting solicitation to commit a crime if with the intent of promoting
or facilitating its commission he commands, encourages or facilitating its commission he commands, encourages
or requests another person to engage in specific conduct or requests another person to engage in specific conduct
which would constitute such crime or an attempt to commit which would constitute such crime or an attempt to commit
such crime or which would establish his complicity in its such crime or which would establish his complicity in its
commission or attempted commission. commission or attempted commission.
18 Pa.Cons.stat.ann. 903. Criminal conspiracy 18 Pa.Cons.stat.ann. 903. Criminal conspiracy
(a) Definition of conspiracy.--A person is guilty of (a) Definition of conspiracy.--A person is guilty of
conspiracy with another person or persons to commit conspiracy with another person or persons to commit
a crime if with the intent of promoting or facilitating its a crime if with the intent of promoting or facilitating its
commission he: commission he:
(1) agrees with such other person or persons that they (1) agrees with such other person or persons that they
or one or more of them will engage in conduct which or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to constitutes such crime or an attempt or solicitation to
commit such crime; or commit such crime; or
(2) agrees to aid such other person or persons in the (2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt planning or commission of such crime or of an attempt
or solicitation to commit such crime. or solicitation to commit such crime.
(b) Scope of conspiratorial relationship.--If a person (b) Scope of conspiratorial relationship.--If a person
guilty of conspiracy, as defined by subsection (a) of this guilty of conspiracy, as defined by subsection (a) of this
section, knows that a person with whom he conspires section, knows that a person with whom he conspires
to commit a crime has conspired with another person to commit a crime has conspired with another person
or persons to commit the same crime, he is guilty of or persons to commit the same crime, he is guilty of
conspiring with such other person or persons, to commit conspiring with such other person or persons, to commit
such crime whether or not he knows their identity. such crime whether or not he knows their identity.
(c) Conspiracy with multiple criminal objectives.--If (c) Conspiracy with multiple criminal objectives.--If
a person conspires to commit a number of crimes, he a person conspires to commit a number of crimes, he
is guilty of only one conspiracy so long as such multiple is guilty of only one conspiracy so long as such multiple
crimes are the object of the same agreement or continuous crimes are the object of the same agreement or continuous
conspiratorial relationship. conspiratorial relationship.
1. Grading and Penalties 1. Grading and Penalties
18 Pa.Cons.Stat.Ann. 905(a) provides that inchoate crimes have the same 18 Pa.Cons.Stat.Ann. 905(a) provides that inchoate crimes have the same
grade and degree as the most serious offense which is attempted or solicited or grade and degree as the most serious offense which is attempted or solicited or
is an object of the conspiracy (unless otherwise provided in the Pennsylvania is an object of the conspiracy (unless otherwise provided in the Pennsylvania
Crimes and Offenses Code). See also, Commonwealth v. Hoke, 599 Pa. 587, Crimes and Offenses Code). See also, Commonwealth v. Hoke, 599 Pa. 587,
593-594, 962 A.2d 664, 668 (2009).20 593-594, 962 A.2d 664, 668 (2009).20
2. Dismissal of Charge 2. Dismissal of Charge
18 Pa.Cons.Stat.Ann. 905(b) provides that if the particular conduct charged 18 Pa.Cons.Stat.Ann. 905(b) provides that if the particular conduct charged
to constitute the inchoate crime is so inherently unlikely to result or culminate to constitute the inchoate crime is so inherently unlikely to result or culminate
in the commission of a crime that neither such conduct nor the actor presents in the commission of a crime that neither such conduct nor the actor presents
a public danger warranting the grading of such offense under this section, the a public danger warranting the grading of such offense under this section, the
court may dismiss the prosecution. court may dismiss the prosecution.
D. Sex Offender Registration D. Sex Offender Registration
The inchoate crimes under 18 Pa.Cons.Stat.Ann. 901, 902 & 903 are listed The inchoate crimes under 18 Pa.Cons.Stat.Ann. 901, 902 & 903 are listed
in 42 Pa.Cons.Stat.Ann. 9799.14 and are in the Tier for which the underlying in 42 Pa.Cons.Stat.Ann. 9799.14 and are in the Tier for which the underlying
crime is listed. crime is listed.
20 See Chapter 9, Section 9.8(B) Statutory Penalties for Crimes of Sexual Violence for the specific penalties. 20 See Chapter 9, Section 9.8(B) Statutory Penalties for Crimes of Sexual Violence for the specific penalties.
Chapter 4 Chapter 4
OFFENSES AGAINST OFFENSES AGAINST

CHILDREN CHILDREN
Offenses Against Children Offenses Against Children
Chapter Four Table of Contents Chapter Four Table of Contents

4.1 CHAPTER OVERVIEW .......................................................................................... 5 4.1 CHAPTER OVERVIEW .......................................................................................... 5
4.2 LURING A CHILD INTO A MOTOR VEHICLE OR STRUCTURE .................. 5 4.2 LURING A CHILD INTO A MOTOR VEHICLE OR STRUCTURE .................. 5
A. Statutory Citation and Elements ................................................................................. 5 A. Statutory Citation and Elements ................................................................................. 5
B. Mens Rea ............................................................................................................................... 6 B. Mens Rea ............................................................................................................................... 6
C. Definitions ............................................................................................................................ 6 C. Definitions ............................................................................................................................ 6
D. Conduct Constituting lure .......................................................................................... 7 D. Conduct Constituting lure .......................................................................................... 7
E. Penalties ................................................................................................................................ 7 E. Penalties ................................................................................................................................ 7
F. Sex Offender Registration .............................................................................................. 8 F. Sex Offender Registration .............................................................................................. 8
G. 2005 Amendment .............................................................................................................. 8 G. 2005 Amendment .............................................................................................................. 8
4.3 ENDANGERING WELFARE OF CHILDREN ...................................................... 8 4.3 ENDANGERING WELFARE OF CHILDREN ...................................................... 8
Types of Endangering Welfare of Children: Statutory Elements ................................. 8 Types of Endangering Welfare of Children: Statutory Elements ................................. 8
A. Endangering Welfare of Children Supervision of Child ................................. 9 A. Endangering Welfare of Children Supervision of Child ................................. 9
1. Statutory Citation and Elements .......................................................................... 9 1. Statutory Citation and Elements .......................................................................... 9
2. Purpose of Statute ....................................................................................................... 9 2. Purpose of Statute ....................................................................................................... 9
3. Status as a Parent, Guardian or Other Person ................................................ 9 3. Status as a Parent, Guardian or Other Person ................................................ 9
4. Specific Intent Offense .............................................................................................10 4. Specific Intent Offense .............................................................................................10
(a) Three-Prong Test ......................................................................................11 (a) Three-Prong Test ......................................................................................11
(b) Examples of Knowingly Endangering .........................................11 (b) Examples of Knowingly Endangering .........................................11
(c) Definition of Endangers .....................................................................13 (c) Definition of Endangers .....................................................................13
B. Official Preventing or Interfering with Report of Suspected Child Abuse .....14 B. Official Preventing or Interfering with Report of Suspected Child Abuse .....14
1. Statutory Citation and Elements .........................................................................14 1. Statutory Citation and Elements .........................................................................14
C. Penalties ..............................................................................................................................14 C. Penalties ..............................................................................................................................14
1. Single Episode .............................................................................................................14 1. Single Episode .............................................................................................................14
2. Course of Conduct .....................................................................................................14 2. Course of Conduct .....................................................................................................14
D. Sex Offender Registration ............................................................................................15 D. Sex Offender Registration ............................................................................................15
4.4 CORRUPTION OF MINORS ...............................................................................16 4.4 CORRUPTION OF MINORS ...............................................................................16
Types of Corruption of Minors: Statutory Elements ......................................................16 Types of Corruption of Minors: Statutory Elements ......................................................16
A. Corruption of Minors Non-Sexual Conduct ......................................................16 A. Corruption of Minors Non-Sexual Conduct ......................................................16
2. Penalty ...........................................................................................................................16 2. Penalty ...........................................................................................................................16
B. Corruption of Minors Sexual Conduct .................................................................16 B. Corruption of Minors Sexual Conduct .................................................................16
1. Statutory Citation and Elements ........................................................................16 1. Statutory Citation and Elements ........................................................................16
2. Examples ......................................................................................................................17 2. Examples ......................................................................................................................17

3. Penalty ...........................................................................................................................18 3. Penalty ...........................................................................................................................18
C. Corruption of Minors Truancy ..............................................................................18 C. Corruption of Minors Truancy ..............................................................................18
2. Penalty ...........................................................................................................................18 2. Penalty ...........................................................................................................................18
D. Scope of Corrupts or Tends to Corrupt ...............................................................19 D. Scope of Corrupts or Tends to Corrupt ...............................................................19
E. Adjudication of Delinquency Unnecessary ...........................................................20 E. Adjudication of Delinquency Unnecessary ...........................................................20
F. Presumptions Regarding Minors Age and Court Orders ...............................21 F. Presumptions Regarding Minors Age and Court Orders ...............................21
G. Mistakes as to Age ...........................................................................................................21 G. Mistakes as to Age ...........................................................................................................21
H. Sex Offender Registration ............................................................................................21 H. Sex Offender Registration ............................................................................................21
4.5 SEXUAL ABUSE OF CHILDREN ........................................................................22 4.5 SEXUAL ABUSE OF CHILDREN ........................................................................22
Types of Sexual Abuse of Children .........................................................................................22 Types of Sexual Abuse of Children .........................................................................................22
A. The Defendant Causes or Knowingly Permits the Child to be Filmed ......22 A. The Defendant Causes or Knowingly Permits the Child to be Filmed ......22
2. Grading and Penalty ................................................................................................22 2. Grading and Penalty ................................................................................................22
3. Enhanced Grading and Penalty ...........................................................................22 3. Enhanced Grading and Penalty ...........................................................................22
4. Definition of indecent contact from 18 Pa.Cons.Stat.Ann. 3101 .....22 4. Definition of indecent contact from 18 Pa.Cons.Stat.Ann. 3101 .....22
5. Mistake as to Age, 18 Pa.Cons.Stat.Ann. 6312(e.1) .................................22 5. Mistake as to Age, 18 Pa.Cons.Stat.Ann. 6312(e.1) .................................22
B. The Defendant Films or Photographs a Child......................................................23 B. The Defendant Films or Photographs a Child......................................................23
C. Dissemination of Child Pornography ......................................................................23 C. Dissemination of Child Pornography ......................................................................23
3. Multiple Offenses ......................................................................................................24 3. Multiple Offenses ......................................................................................................24
D. Viewing or Possessing Child Pornography ...........................................................24 D. Viewing or Possessing Child Pornography ...........................................................24
3. Multiple Offenses ......................................................................................................25 3. Multiple Offenses ......................................................................................................25
E. Purpose of Statute ..........................................................................................................25 E. Purpose of Statute ..........................................................................................................25

F. Evidence of Age - 18 Pa.Cons.Stat.Ann. 6312(e) ..........................................26 F. Evidence of Age - 18 Pa.Cons.Stat.Ann. 6312(e) ..........................................26
1. Mistake as to age - 18 Pa.Cons.Stat.Ann. 6312(e.1) ................................26 1. Mistake as to age - 18 Pa.Cons.Stat.Ann. 6312(e.1) ................................26
G. Sex Offender Registration ...........................................................................................26 G. Sex Offender Registration ...........................................................................................26
H. Exception to Criminal Ramifications ......................................................................26 H. Exception to Criminal Ramifications ......................................................................26
I. Computer Depiction includes Streaming Video .............................................27 I. Computer Depiction includes Streaming Video .............................................27
4.6 UNLAWFUL CONTACT WITH MINOR ............................................................28 4.6 UNLAWFUL CONTACT WITH MINOR ............................................................28
A. Statutory Citation and Purpose of Statute ............................................................28 A. Statutory Citation and Purpose of Statute ............................................................28
B. Elements of Offense ........................................................................................................28 B. Elements of Offense ........................................................................................................28
D. Concurrent Jurisdiction to Prosecute .....................................................................29 D. Concurrent Jurisdiction to Prosecute .....................................................................29
E. Definitions ..........................................................................................................................29 E. Definitions ..........................................................................................................................29
F. Sex Offender Registration ............................................................................................30 F. Sex Offender Registration ............................................................................................30
4.7 SEXUAL EXPLOITATION OF CHILDREN ........................................................30 4.7 SEXUAL EXPLOITATION OF CHILDREN ........................................................30
A. Statutory Citation and Elements ...............................................................................30 A. Statutory Citation and Elements ...............................................................................30
B. Offense Defined ................................................................................................................30 B. Offense Defined ................................................................................................................30
4.8 INTERNET CHILD PORNOGRAPHY ...............................................................31 4.8 INTERNET CHILD PORNOGRAPHY ...............................................................31
A. Act Declared Unconstitutional ...................................................................................31 A. Act Declared Unconstitutional ...................................................................................31
4.9 OBSCENE MATERIALS .......................................................................................32 4.9 OBSCENE MATERIALS .......................................................................................32
Types of Obscene Materials ......................................................................................................32 Types of Obscene Materials ......................................................................................................32
A. Crimes Related to Obscene Materials and Minors.............................................32 A. Crimes Related to Obscene Materials and Minors.............................................32
1. Display of Obscene Materials to Minors...........................................................32 1. Display of Obscene Materials to Minors...........................................................32
2. Manufacture of Obscene Materials in which a Minor is Depicted.........33 2. Manufacture of Obscene Materials in which a Minor is Depicted.........33
3. Advertisement for Obscene Materials in which a Minor is Included......33 3. Advertisement for Obscene Materials in which a Minor is Included......33
4. Production of Obscene Performance if a Minor is Included ...................34 4. Production of Obscene Performance if a Minor is Included ...................34
5. Dissemination of Explicit Sexual Material 5. Dissemination of Explicit Sexual Material
to a Minor by Sale or Otherwise .........................................................................34 to a Minor by Sale or Otherwise .........................................................................34
(a) Example Computer Images ....................................................................34 (a) Example Computer Images ....................................................................34
(b) Example Emailing a link to a Pornographic Site ........................35 (b) Example Emailing a link to a Pornographic Site ........................35
6. Admission of Minor to Movie or Other 6. Admission of Minor to Movie or Other
Presentation of Sexual Conduct .........................................................................35 Presentation of Sexual Conduct .........................................................................35
B. Definition of Obscene Material and Relevant Provisions ...............................35 B. Definition of Obscene Material and Relevant Provisions ...............................35
1. Obscene .........................................................................................................................35 1. Obscene .........................................................................................................................35
2. Material ........................................................................................................................36 2. Material ........................................................................................................................36
3. Performance ................................................................................................................36 3. Performance ................................................................................................................36

4. Sexual Conduct ............................................................................................................36 4. Sexual Conduct ............................................................................................................36
C. Initial Trial Court Determination ..............................................................................36 C. Initial Trial Court Determination ..............................................................................36
4.10 TRANSMISSION OF SEXUALLY EXPLICIT IMAGES BY MINOR ..............36 4.10 TRANSMISSION OF SEXUALLY EXPLICIT IMAGES BY MINOR ..............36
A. Summary Offense ...........................................................................................................37 A. Summary Offense ...........................................................................................................37
2. Penalty ...........................................................................................................................37 2. Penalty ...........................................................................................................................37
B. Misdemeanor of the Third Degree ..........................................................................37 B. Misdemeanor of the Third Degree ..........................................................................37
2. Penalty ...........................................................................................................................37 2. Penalty ...........................................................................................................................37
C. Misdemeanor of the Second Degree .......................................................................37 C. Misdemeanor of the Second Degree .......................................................................37
2. Penalty ...........................................................................................................................38 2. Penalty ...........................................................................................................................38
D. Exceptions ..........................................................................................................................38 D. Exceptions ..........................................................................................................................38
E. Definitions .........................................................................................................................38 E. Definitions .........................................................................................................................38
4.11 SEXUAL ASSAULT BY SPORTS OFFICIAL OR VOLUNTEER .....................40 4.11 SEXUAL ASSAULT BY SPORTS OFFICIAL OR VOLUNTEER .....................40
A. Sexual Assault by a Sports Official ...........................................................................40 A. Sexual Assault by a Sports Official ...........................................................................40
2. Exceptions....................................................................................................................40 2. Exceptions....................................................................................................................40
3. Grading and Penalty .................................................................................................40 3. Grading and Penalty .................................................................................................40
4. Definition of sports official ................................................................................40 4. Definition of sports official ................................................................................40
B. Volunteer or Employee of Nonprofit Association ...............................................40 B. Volunteer or Employee of Nonprofit Association ...............................................40
2. Exceptions....................................................................................................................41 2. Exceptions....................................................................................................................41
3. Grading and Penalty ...............................................................................................41 3. Grading and Penalty ...............................................................................................41
4. Definition of Direct Contact ..............................................................................41 4. Definition of Direct Contact ..............................................................................41
4.12 CRIMINAL ATTEMPT, CONSPIRACY OR SOLICITATION...........................41 4.12 CRIMINAL ATTEMPT, CONSPIRACY OR SOLICITATION...........................41
A. Statutory Citations ..........................................................................................................41 A. Statutory Citations ..........................................................................................................41
B. Definition of Inchoate Offenses .................................................................................41 B. Definition of Inchoate Offenses .................................................................................41
1. Grading and Penalties ..............................................................................................42 1. Grading and Penalties ..............................................................................................42
2. Dismissal of Charge...................................................................................................42 2. Dismissal of Charge...................................................................................................42
E. Solicitation of a Minor ...................................................................................................43 E. Solicitation of a Minor ...................................................................................................43
Chapter Four Chapter Four

This chapter outlines laws specifically designed to protect children. Also covered This chapter outlines laws specifically designed to protect children. Also covered
in this chapter are crimes when obscene materials are shown or distributed to minors, in this chapter are crimes when obscene materials are shown or distributed to minors,
and the recent development of sexting which is when a minor sends a text image of and the recent development of sexting which is when a minor sends a text image of
himself or another minor. himself or another minor.
Listed below are the crimes discussed in this chapter. Listed below are the crimes discussed in this chapter.
Section 4.2: Luring a Child into a Motor Vehicle, 18 Pa.Cons.Stat.Ann. Section 4.2: Luring a Child into a Motor Vehicle, 18 Pa.Cons.Stat.Ann.
2910 2910
Section 4.3: Endangering Welfare of Children, 18 Pa.Cons.Stat.Ann. Section 4.3: Endangering Welfare of Children, 18 Pa.Cons.Stat.Ann.
4304 4304
Section 4.4: Corruption of Minors, 18 Pa.Cons.Stat.Ann. 6301 Section 4.4: Corruption of Minors, 18 Pa.Cons.Stat.Ann. 6301
Section 4.5: Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312 Section 4.5: Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312
Section 4.6: Unlawful Contact with Minor, 18 Pa.Cons.Stat.Ann. 6318 Section 4.6: Unlawful Contact with Minor, 18 Pa.Cons.Stat.Ann. 6318
Section 4.7: Sexual Exploitation of Children, 18 Pa.Cons.Stat.Ann. Section 4.7: Sexual Exploitation of Children, 18 Pa.Cons.Stat.Ann.
6320 6320
Section 4.8: Internet Child Pornography, 18 Pa.Cons.Stat.Ann. 7621- Section 4.8: Internet Child Pornography, 18 Pa.Cons.Stat.Ann. 7621-
7630 7630
Section 4.9: Obscene Materials, 18 Pa.Cons.Stat.Ann. 5903 Section 4.9: Obscene Materials, 18 Pa.Cons.Stat.Ann. 5903
Section 4.10: Transmission of Sexually Explicit Images by Minor, 18 Section 4.10: Transmission of Sexually Explicit Images by Minor, 18
Pa.Cons.Stat.Ann. 6321 Pa.Cons.Stat.Ann. 6321
Section 4.12 examines the cases where children are the intended victims of an Section 4.12 examines the cases where children are the intended victims of an
attempt, conspiracy or solicitation involving sexual violence. attempt, conspiracy or solicitation involving sexual violence.
Offenses of sexual violence which may involve children as victims, such as Rape, Offenses of sexual violence which may involve children as victims, such as Rape,
18 Pa.Cons.Stat.Ann. 3121, Statutory Sexual Assault, 18 Pa.Cons.Stat.Ann. 3122, 18 Pa.Cons.Stat.Ann. 3121, Statutory Sexual Assault, 18 Pa.Cons.Stat.Ann. 3122,
and Involuntary Deviate Sexual Intercourse, 18 Pa.Cons.Stat.Ann. 3123, are covered and Involuntary Deviate Sexual Intercourse, 18 Pa.Cons.Stat.Ann. 3123, are covered
in Chapter 3. in Chapter 3.
4.2 LURING A CHILD INTO A MOTOR VEHICLE OR STRUCTURE 4.2 LURING A CHILD INTO A MOTOR VEHICLE OR STRUCTURE

Lures or attempts to lure a child; Lures or attempts to lure a child;
Into a motor vehicle; or Into a motor vehicle; or

Into a structure; Into a structure;
Without the consent, express or implied, of the childs parent or guardian; Without the consent, express or implied, of the childs parent or guardian;
Unless the circumstances reasonably indicate that the child is in need of Unless the circumstances reasonably indicate that the child is in need of
assistance. assistance.
B. Mens Rea B. Mens Rea
Age of Child: Age of Child:
As to the element of intent, culpability required is intentional, knowing or reckless As to the element of intent, culpability required is intentional, knowing or reckless
conduct. conduct.
At trial, to establish that a defendant possessed the sufficient mens rea to commit At trial, to establish that a defendant possessed the sufficient mens rea to commit
the offense of luring a child into a motor vehicle, the prosecution is required to the offense of luring a child into a motor vehicle, the prosecution is required to
prove, beyond a reasonable doubt, that the defendant either intentionally sought prove, beyond a reasonable doubt, that the defendant either intentionally sought
out the victim because he was under the age of 18, knew the victim was under the out the victim because he was under the age of 18, knew the victim was under the
age of 18, or, at the very least, was reckless as to the victims age. Commonwealth age of 18, or, at the very least, was reckless as to the victims age. Commonwealth
v. Gallagher, 592 Pa. 262, 264-265, 924 A.2d 636, 637-638 (2007). v. Gallagher, 592 Pa. 262, 264-265, 924 A.2d 636, 637-638 (2007).
Luring: Luring:
There is no need for the prosecution to show intent to harm. Luring does not There is no need for the prosecution to show intent to harm. Luring does not
require a bad purpose intent. Commonwealth v. Gallagher, 592 Pa. 262, 269, require a bad purpose intent. Commonwealth v. Gallagher, 592 Pa. 262, 269,
924 A.2d 636, 640 (2007); Commonwealth v. Figueroa, 648 A.2d 555, 558 (Pa. 924 A.2d 636, 640 (2007); Commonwealth v. Figueroa, 648 A.2d 555, 558 (Pa.
Super. 1994), appeal denied, 540 Pa. 578, 655 A.2d 510 (1995). The purpose Super. 1994), appeal denied, 540 Pa. 578, 655 A.2d 510 (1995). The purpose
behind this crime is to prohibit persons from offering rides to children under any behind this crime is to prohibit persons from offering rides to children under any
invitational pretext. It is not the Commonwealths burden to prove that a person invitational pretext. It is not the Commonwealths burden to prove that a person
who lures a child into an automobile does so with the purpose of harming the who lures a child into an automobile does so with the purpose of harming the
child. Commonwealth v. Hart, 611 Pa. 531, 552, 28 A.3d 898, 911 (2011) child. Commonwealth v. Hart, 611 Pa. 531, 552, 28 A.3d 898, 911 (2011)
C. Definitions C. Definitions
Child A person under 18 years of age. 18 Pa.Cons.Stat.Ann. 2908(b) & Child A person under 18 years of age. 18 Pa.Cons.Stat.Ann. 2908(b) &
2910(c); Commonwealth v. Gallagher, 592 Pa. 262, 266, 924 A.2d 636, 638 2910(c); Commonwealth v. Gallagher, 592 Pa. 262, 266, 924 A.2d 636, 638
(2007). (2007).
Motor vehicle defined: Any self-propelled device in, upon or by which any Motor vehicle defined: Any self-propelled device in, upon or by which any
person or property is or may be transported or drawn on a public highway. 18 person or property is or may be transported or drawn on a public highway. 18
Pa.Cons.Stat.Ann. 2910(c). Pa.Cons.Stat.Ann. 2910(c).
Structure defined: A house, apartment building, shop, warehouse, barn, Structure defined: A house, apartment building, shop, warehouse, barn,
building, vessel, railroad car, cargo container, house car, trailer, trailer coach, building, vessel, railroad car, cargo container, house car, trailer, trailer coach,
camper, mine, floating home or other enclosed structure capable of holding a camper, mine, floating home or other enclosed structure capable of holding a
child, which is not open to the general public. 18 Pa.Cons.Stat.Ann. 2910(c). child, which is not open to the general public. 18 Pa.Cons.Stat.Ann. 2910(c).
D. Conduct Constituting lure D. Conduct Constituting lure
In Commonwealth v. Hart, 611 Pa. 531, 28 A.3d 898 (2011), the Pennsylvania In Commonwealth v. Hart, 611 Pa. 531, 28 A.3d 898 (2011), the Pennsylvania
Supreme Court held that an attempt to lure does not occur upon a mere offer Supreme Court held that an attempt to lure does not occur upon a mere offer
of a ride, but rather, involves only situations where a child is provided a further of a ride, but rather, involves only situations where a child is provided a further
enticement or inducement to enter a vehicle in addition to the offer of a ride. enticement or inducement to enter a vehicle in addition to the offer of a ride.
611 Pa. at 550-551, 28 A.3d at 910. Examples provided by the Court of further 611 Pa. at 550-551, 28 A.3d at 910. Examples provided by the Court of further
enticement or inducement were: enticement or inducement were:
Receiving money Receiving money

A treat such as candy or ice cream A treat such as candy or ice cream
An object of interest like a toy, game or puppy. An object of interest like a toy, game or puppy.
An enticement or inducement may also take the form of a directive or a command An enticement or inducement may also take the form of a directive or a command
to a child to enter a car, which suggests deleterious consequences to the child if to a child to enter a car, which suggests deleterious consequences to the child if
the child does not obey. Id. the child does not obey. Id.
Hand motions: waiving or motioning come here to the victim. Commonwealth Hand motions: waiving or motioning come here to the victim. Commonwealth
v. McClintock, 639 A.2d 1222, 1227 (Pa. Super. 1994). v. McClintock, 639 A.2d 1222, 1227 (Pa. Super. 1994).
Inducement: offering the victim money in exchange for work, the nature of Inducement: offering the victim money in exchange for work, the nature of
which defendant refused to describe unless the victim accompanied him to his which defendant refused to describe unless the victim accompanied him to his
car, constitutes a lure. The definition of lure includes tempting by pleasure car, constitutes a lure. The definition of lure includes tempting by pleasure
or gain, and the gain does not have to be a pleasant one; it can be any kind of or gain, and the gain does not have to be a pleasant one; it can be any kind of
inducement. Commonwealth v. Adamo, 637 A.2d 302, 307 (Pa. Super. 1994), inducement. Commonwealth v. Adamo, 637 A.2d 302, 307 (Pa. Super. 1994),
appeal denied, 538 Pa. 631, 647 A.2d 507 (1994), cert. denied, 513 U.S. 1022 appeal denied, 538 Pa. 631, 647 A.2d 507 (1994), cert. denied, 513 U.S. 1022
(1994). (1994).
Inducement: approaching walking victim while in a car and offering the victim Inducement: approaching walking victim while in a car and offering the victim
money in exchange for help finding a location was sufficient evidence to constitute money in exchange for help finding a location was sufficient evidence to constitute
a lure. Commonwealth v. Strouse, 909 A.2d 368, 369 (Pa.Super. 2006), appeal a lure. Commonwealth v. Strouse, 909 A.2d 368, 369 (Pa.Super. 2006), appeal
Commands and Threats: a lure may be any invitational pretext which means Commands and Threats: a lure may be any invitational pretext which means
not only an enticement of a benefit to the child and but also includes threats, or not only an enticement of a benefit to the child and but also includes threats, or
commands, or implied threats. Commonwealth v. Nanorta, 742 A.2d 176 (Pa. commands, or implied threats. Commonwealth v. Nanorta, 742 A.2d 176 (Pa.
Super. 1999), appeal denied, 563 Pa. 613, 757 A.2d 930 (2000). The court held Super. 1999), appeal denied, 563 Pa. 613, 757 A.2d 930 (2000). The court held
that the command get in my car could be characterized as a lure. that the command get in my car could be characterized as a lure.
E. Penalties E. Penalties
Grading: a misdemeanor of the first degree, unless the child is under 13 years of Grading: a misdemeanor of the first degree, unless the child is under 13 years of
age, then a felony of the second degree. age, then a felony of the second degree.
Penalty: If a misdemeanor of the first degree: maximum incarceration sentence Penalty: If a misdemeanor of the first degree: maximum incarceration sentence
and the maximum fine: shall not exceed 5 years and $10,000. and the maximum fine: shall not exceed 5 years and $10,000.
Enhanced Penalty Due To Age of Victim: If victim is a child under age 13, then a Enhanced Penalty Due To Age of Victim: If victim is a child under age 13, then a
felony of the second degree: maximum incarceration sentence and the maximum felony of the second degree: maximum incarceration sentence and the maximum
fine: shall not exceed 10 years and $25,000. fine: shall not exceed 10 years and $25,000.
F. Sex Offender Registration F. Sex Offender Registration
The crime of Luring a Child into a Motor Vehicle under 18 Pa.Cons.Stat.Ann. The crime of Luring a Child into a Motor Vehicle under 18 Pa.Cons.Stat.Ann.
2910 is a Tier I Sexual Offense under 42 Pa.Cons.Stat.Ann. 9799.14. A Tier I 2910 is a Tier I Sexual Offense under 42 Pa.Cons.Stat.Ann. 9799.14. A Tier I
sexual offense requires registration with the Pennsylvania State Police for a sexual offense requires registration with the Pennsylvania State Police for a
period of 15 years.1 See 42 Pa.Cons.Stat.Ann. 9799.15. period of 15 years.1 See 42 Pa.Cons.Stat.Ann. 9799.15.
G. 2005 Amendment G. 2005 Amendment
On November 10, 2005, Luring a Child into a Motor Vehicle was amended to Luring On November 10, 2005, Luring a Child into a Motor Vehicle was amended to Luring
a Child into a Motor Vehicle or Structure. The new statute makes it a crime to lure, a Child into a Motor Vehicle or Structure. The new statute makes it a crime to lure,
or attempt to lure, a child into a motor vehicle or a structure. The amendment or attempt to lure, a child into a motor vehicle or a structure. The amendment
also provides an affirmative defense to luring a child to a structure for a lawful also provides an affirmative defense to luring a child to a structure for a lawful
purpose and defines motor vehicle and structure. The act took effect 60 days purpose and defines motor vehicle and structure. The act took effect 60 days
following November 10, 2005. following November 10, 2005.
Therefore, the holding of the Pennsylvania Supreme Court in Commonwealth v. Therefore, the holding of the Pennsylvania Supreme Court in Commonwealth v.
Tate, 572 Pa. 411, 816 A.2d 1097 (2003) would no longer be applicable to this Tate, 572 Pa. 411, 816 A.2d 1097 (2003) would no longer be applicable to this
crime. In Tate, the Supreme Court held that the prior luring statute did not include crime. In Tate, the Supreme Court held that the prior luring statute did not include
the inchoate offense of attempting to lure a child into a motor vehicle. Where a the inchoate offense of attempting to lure a child into a motor vehicle. Where a
defendant does not manage to get the child into the vehicle, the Supreme Court defendant does not manage to get the child into the vehicle, the Supreme Court
held that the appropriate offense was criminal attempt; however, the statute has held that the appropriate offense was criminal attempt; however, the statute has
now been amended to include attempt. now been amended to include attempt.
4.3 ENDANGERING WELFARE OF CHILDREN 4.3 ENDANGERING WELFARE OF CHILDREN
Types of Endangering Welfare of Children: Types of Endangering Welfare of Children:
Endangering Welfare of Children Supervision of Child Endangering Welfare of Children Supervision of Child
18 Pa.Cons.Stat.Ann. 4304(a)(1)) 18 Pa.Cons.Stat.Ann. 4304(a)(1))
Official Preventing or Interfering with Report of Suspected Child Abuse Official Preventing or Interfering with Report of Suspected Child Abuse
1 For additional detailed discussion, see Chapter 9, Section 9.7 Sexually Violent Predator Assessment and Chapter 11, SEX 1 For additional detailed discussion, see Chapter 9, Section 9.7 Sexually Violent Predator Assessment and Chapter 11, SEX
OFFENDER REGISTRATION. OFFENDER REGISTRATION.
A. Endangering Welfare of Children Supervision of Child A. Endangering Welfare of Children Supervision of Child

A parent or guardian, or A parent or guardian, or
Other person supervising the welfare of a child under 18 years of age or Other person supervising the welfare of a child under 18 years of age or
a person that employs or supervises such a person; a person that employs or supervises such a person;
Knowingly endangers the welfare of the child; Knowingly endangers the welfare of the child;
By violating a duty of care, protection or support. By violating a duty of care, protection or support.
2. Purpose of Statute 2. Purpose of Statute
This statute attempts to prohibit a broad range of conduct in order to safeguard This statute attempts to prohibit a broad range of conduct in order to safeguard
the welfare and security of our children. Commonwealth v. Trippett, 932 the welfare and security of our children. Commonwealth v. Trippett, 932
A.2d 188, 194 (Pa.Super. 2007); Commonwealth v. Brown, 721 A.2d 1105, A.2d 188, 194 (Pa.Super. 2007); Commonwealth v. Brown, 721 A.2d 1105,
1106 -1107 (Pa.Super. 1998). The common sense of the community should 1106 -1107 (Pa.Super. 1998). The common sense of the community should
be considered when interpreting the language of the statute. be considered when interpreting the language of the statute.
3. Status as a Parent, Guardian or Other Person 3. Status as a Parent, Guardian or Other Person
Parent: In the case of a parent and child, the appellate courts have repeatedly Parent: In the case of a parent and child, the appellate courts have repeatedly
stated that a parent has the legal duty to her [or his] child, and the discharge stated that a parent has the legal duty to her [or his] child, and the discharge
of this duty requires affirmative performance. Commonwealth v. Howard, of this duty requires affirmative performance. Commonwealth v. Howard,
402 A.2d 674, 676 (Pa. Super. 1979); Commonwealth v. Barnhart, 497 A.2d 402 A.2d 674, 676 (Pa. Super. 1979); Commonwealth v. Barnhart, 497 A.2d
616, 621 (Pa. Super. 1985), appeal denied, 517 Pa. 620, 538 A.2d 874 (1988), 616, 621 (Pa. Super. 1985), appeal denied, 517 Pa. 620, 538 A.2d 874 (1988),
cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 34 (1988). cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 34 (1988).
Other Person Supervising the Child: As used in this subsection, the term Other Person Supervising the Child: As used in this subsection, the term
person supervising the welfare of a child means a person other than a parent person supervising the welfare of a child means a person other than a parent
or guardian who provides care, education, training or control of a child. 18 or guardian who provides care, education, training or control of a child. 18
Pa.Cons.Stat.Ann. 4304(a)(3). Pa.Cons.Stat.Ann. 4304(a)(3).
Other person supervising the welfare of the child is not limited to only those Other person supervising the welfare of the child is not limited to only those
persons with permanent, temporary or other quasi-legal custody, but also persons with permanent, temporary or other quasi-legal custody, but also
includes, and is not limited to: includes, and is not limited to:
stepparents; stepparents;
grandparents; grandparents;
adult siblings; adult siblings;
adult roommates; adult roommates;
life partners; life partners;
any adult person residing with a custodial or non-custodial child; any adult person residing with a custodial or non-custodial child;
any adult person who is placed in a position of control and supervision any adult person who is placed in a position of control and supervision
of a child. of a child.
Commonwealth v. Ahmad, 961 A.2d 884 (Pa.Super. 2008); Commonwealth Commonwealth v. Ahmad, 961 A.2d 884 (Pa.Super. 2008); Commonwealth
v. Brown, 721 A.2d 1105 (Pa.Super. 1998); Commonwealth v. Kellam, 719 v. Brown, 721 A.2d 1105 (Pa.Super. 1998); Commonwealth v. Kellam, 719
A.2d 792 (Pa. Super. 1998), appeal denied, 559 Pa. 714, 740 A.2d 1145 (1999). A.2d 792 (Pa. Super. 1998), appeal denied, 559 Pa. 714, 740 A.2d 1145 (1999).
The duty to care, protect or support a child is not limited to natural and The duty to care, protect or support a child is not limited to natural and
adoptive parents. Whenever a person is placed in control and supervision of adoptive parents. Whenever a person is placed in control and supervision of
a child, that person has assumed such a status relationship to the child so as a child, that person has assumed such a status relationship to the child so as
to impose a duty to act. Commonwealth v. Kellam, 719 A.2d 792, 796 (Pa. to impose a duty to act. Commonwealth v. Kellam, 719 A.2d 792, 796 (Pa.
Super. 1998), appeal denied, 559 Pa. 714, 740 A.2d 1145 (1999). In Kellam, Super. 1998), appeal denied, 559 Pa. 714, 740 A.2d 1145 (1999). In Kellam,
the defendant lived with his girlfriend and her infant daughter, controlled the defendant lived with his girlfriend and her infant daughter, controlled
many aspects of the mothers life, including raising her other children and the many aspects of the mothers life, including raising her other children and the
infant victim, voluntarily assumed parental responsibilities with regard to infant victim, voluntarily assumed parental responsibilities with regard to
the child, e.g. watching her when the mother was away, changing her diaper the child, e.g. watching her when the mother was away, changing her diaper
and feeding her. He was held to have supervised the welfare of the child. and feeding her. He was held to have supervised the welfare of the child.
There must be a case-by-case review in determining whether an adult living There must be a case-by-case review in determining whether an adult living
with a minor child is criminally liable, and there must be evidence that the with a minor child is criminally liable, and there must be evidence that the
adult was involved with the child. Factors such as playing with the child, adult was involved with the child. Factors such as playing with the child,
eating with the child, babysitting the child or otherwise interacting with the eating with the child, babysitting the child or otherwise interacting with the
child should be examined. Commonwealth v. Brown, 721 A.2d 1105, 1108 child should be examined. Commonwealth v. Brown, 721 A.2d 1105, 1108
(Pa. Super. 1998). (Pa. Super. 1998).
Defendant had a duty to protect the child when she accepted the Defendant had a duty to protect the child when she accepted the
role of babysitter. Commonwealth v. Vining, 744 A.2d 310 (Pa. role of babysitter. Commonwealth v. Vining, 744 A.2d 310 (Pa.
Where there is no evidence of defendants role as a supervisor or Where there is no evidence of defendants role as a supervisor or
guardian of the child (e.g. defendant is just a visitor in the victims guardian of the child (e.g. defendant is just a visitor in the victims
home) the defendant cannot be convicted of Endangering Welfare home) the defendant cannot be convicted of Endangering Welfare
of Children. Commonwealth v. Halye, 719 A.2d. 763 (Pa. Super. of Children. Commonwealth v. Halye, 719 A.2d. 763 (Pa. Super.
1998), appeal denied, 560 Pa. 699, 743 A.2d 916 (1999), cert. 1998), appeal denied, 560 Pa. 699, 743 A.2d 916 (1999), cert.
denied, 529 U.S. 1012 (2000). denied, 529 U.S. 1012 (2000).
4. Specific Intent Offense 4. Specific Intent Offense
Endangering the welfare of a child is a specific intent offense enacted in Endangering the welfare of a child is a specific intent offense enacted in
broad terms so as to safeguard the welfare and security of children. See broad terms so as to safeguard the welfare and security of children. See
Commonwealth v. Foster, 764 A.2d 1076 (Pa. Super. 2000), appeal denied, Commonwealth v. Foster, 764 A.2d 1076 (Pa. Super. 2000), appeal denied,
566 Pa. 658, 782 A.2d 542 (2001): To be convicted under this statute, the 566 Pa. 658, 782 A.2d 542 (2001): To be convicted under this statute, the
Commonwealth must prove a knowing violation of a duty of care. 764 A.2d Commonwealth must prove a knowing violation of a duty of care. 764 A.2d
at 1082 (quoting Commonwealth v. Fewell, 654 A.2d 1109, 1117 (Pa. Super. at 1082 (quoting Commonwealth v. Fewell, 654 A.2d 1109, 1117 (Pa. Super.
1995)). 1995)).
Often, intent cannot be proven directly but must be inferred from examination Often, intent cannot be proven directly but must be inferred from examination
of the facts and circumstances of the case. Commonwealth v. Winger, 957 of the facts and circumstances of the case. Commonwealth v. Winger, 957
A.2d 325, 329 (Pa.Super. 2008). A.2d 325, 329 (Pa.Super. 2008).
(a) Three-Prong Test (a) Three-Prong Test
The accused must act knowingly to be convicted of endangering the The accused must act knowingly to be convicted of endangering the
welfare of a child. The Superior Court of Pennsylvania has employed welfare of a child. The Superior Court of Pennsylvania has employed
a three-prong standard to determine whether the Commonwealths a three-prong standard to determine whether the Commonwealths
evidence is sufficient to prove this element of intent: evidence is sufficient to prove this element of intent:
i) The accused is aware of his duty to protect the child; i) The accused is aware of his duty to protect the child;
ii) The accused is aware that the child is in circumstances that ii) The accused is aware that the child is in circumstances that
threaten the childs physical or psychological welfare; and threaten the childs physical or psychological welfare; and
iii) The accused has either failed to act or has taken action so iii) The accused has either failed to act or has taken action so
lame or meager that such actions cannot reasonably be lame or meager that such actions cannot reasonably be
expected to protect the childs physical or psychological expected to protect the childs physical or psychological
welfare. welfare.
Commonwealth v. Retkofsky, 860 A.2d 1098, 1100 (Pa. Super. 2004); Commonwealth v. Retkofsky, 860 A.2d 1098, 1100 (Pa. Super. 2004);
Commonwealth v. Cardwell, 515 A.2d 311, 315 (Pa. Super. 1986), Commonwealth v. Cardwell, 515 A.2d 311, 315 (Pa. Super. 1986),
(b) Examples of Knowingly Endangering (b) Examples of Knowingly Endangering
Commonwealth v. Winger, 957 A.2d 325 (Pa.Super. 2008) Commonwealth v. Winger, 957 A.2d 325 (Pa.Super. 2008)
Driving with high blood alcohol level: There was a prima facie case Driving with high blood alcohol level: There was a prima facie case
of endangering welfare of child against defendant when she drove of endangering welfare of child against defendant when she drove
her car with .252% blood alcohol content and her two year old her car with .252% blood alcohol content and her two year old
child was in the car at the time. Commonwealth v. Winger, 957 child was in the car at the time. Commonwealth v. Winger, 957
A.2d 325 (Pa.Super. 2008). A.2d 325 (Pa.Super. 2008).
Commonwealth v. Miller, 600 A.2d 988 (Pa. Super. 1992) Commonwealth v. Miller, 600 A.2d 988 (Pa. Super. 1992)
The Superior Court held that defendant was not aware that she The Superior Court held that defendant was not aware that she
had placed her child in circumstances that threatened the childs had placed her child in circumstances that threatened the childs
physical or psychological welfare where the defendant agreed to go physical or psychological welfare where the defendant agreed to go
out only after being told by the childs father that his neighbor had out only after being told by the childs father that his neighbor had
agreed to baby sit the child. Defendant relied on that representation agreed to baby sit the child. Defendant relied on that representation
and left the child sleeping in a room with a space heater that and left the child sleeping in a room with a space heater that
eventually created a fire, killing the child. Failure to check on the eventually created a fire, killing the child. Failure to check on the
alleged babysitting arrangements was not unreasonable. alleged babysitting arrangements was not unreasonable.
Commonwealth v. Vining, 744 A.2d 310 (Pa. Super. 1999), appeal Commonwealth v. Vining, 744 A.2d 310 (Pa. Super. 1999), appeal
denied, 564 Pa. 709, 764 A.2d 1069 (2000) denied, 564 Pa. 709, 764 A.2d 1069 (2000)
Although a new trial was granted on evidentiary grounds, the Although a new trial was granted on evidentiary grounds, the
Superior Court held that as the person who beat and burned the Superior Court held that as the person who beat and burned the
child, the defendant would have been aware that the child was in child, the defendant would have been aware that the child was in
circumstances that threatened her physical well-being. circumstances that threatened her physical well-being.
Commonwealth v. Jones, 744 A.2d 310 (Pa. Super. 1999), appeal Commonwealth v. Jones, 744 A.2d 310 (Pa. Super. 1999), appeal
granted, 563 Pa. 658, 759 A.2d 383 (2000), appeal dismissed, 565 granted, 563 Pa. 658, 759 A.2d 383 (2000), appeal dismissed, 565
Pa. 463, 774 A.2d 1246 (2001) Pa. 463, 774 A.2d 1246 (2001)
In the companion case to Vining, Vinings live-in companion, In the companion case to Vining, Vinings live-in companion,
defendant Jones, was found guilty of Endangering Welfare of defendant Jones, was found guilty of Endangering Welfare of
Children based on the theory that he was present in the apartment Children based on the theory that he was present in the apartment
after the child had been beaten and burned. The court held that after the child had been beaten and burned. The court held that
the nature of the childs injuries would have been apparent to the nature of the childs injuries would have been apparent to
defendant Jones, and thus he knew the victim had been injured and defendant Jones, and thus he knew the victim had been injured and
needed medical assistance, but failed to seek immediate medical needed medical assistance, but failed to seek immediate medical
attention for the child. attention for the child.
Commonwealth v. Retkofsky, 860 A.2d 1098 (Pa. Super. 2004) Commonwealth v. Retkofsky, 860 A.2d 1098 (Pa. Super. 2004)
The Court held that defendant was aware of the dangers and The Court held that defendant was aware of the dangers and
knowingly endangered his son when he drove an ATV at an knowingly endangered his son when he drove an ATV at an
accelerated speed down a paved residential street, fleeing from accelerated speed down a paved residential street, fleeing from
police, with his nine-year-old son hanging onto defendants body police, with his nine-year-old son hanging onto defendants body
without any other restraint. without any other restraint.
Commonwealth v. Cardwell, 515 A.2d 311 (Pa. Super. 1986), Commonwealth v. Cardwell, 515 A.2d 311 (Pa. Super. 1986),
appeal denied, 515 Pa. 573, 527 A.2d 535 (1987) appeal denied, 515 Pa. 573, 527 A.2d 535 (1987)
The statute requires affirmative performance which cannot be met The statute requires affirmative performance which cannot be met
simply by showing any step at all toward preventing harm, however simply by showing any step at all toward preventing harm, however
incomplete or ineffectual. The person charged with the duty of incomplete or ineffectual. The person charged with the duty of
care must take steps that are reasonably calculated to achieve care must take steps that are reasonably calculated to achieve
success. The facts of the Cardwell case involved a situation where success. The facts of the Cardwell case involved a situation where
the defendants husband had sexually abused her daughter for a the defendants husband had sexually abused her daughter for a
period of four years, and defendant, upon learning of the abuse, period of four years, and defendant, upon learning of the abuse,
did nothing other than to write two angry letters to her husband. did nothing other than to write two angry letters to her husband.
Because she failed to take concrete steps to remove her daughter Because she failed to take concrete steps to remove her daughter
from the situation, defendant was guilty of Endangering Welfare of from the situation, defendant was guilty of Endangering Welfare of
Children. Children.
Commonwealth v. Barnhart, 497 A.2d 616 (Pa. Super. 1985), Commonwealth v. Barnhart, 497 A.2d 616 (Pa. Super. 1985),
appeal denied, 517 Pa. 620, 538 A.2d 874 (1988), cert. denied, 488 appeal denied, 517 Pa. 620, 538 A.2d 874 (1988), cert. denied, 488
U.S. 817 (1988) U.S. 817 (1988)
Where the child suffered from a serious and life-threatening medical Where the child suffered from a serious and life-threatening medical
condition, prayers and anointing the child were not sufficient steps condition, prayers and anointing the child were not sufficient steps
to protect the childs welfare. Parents have an affirmative duty to to protect the childs welfare. Parents have an affirmative duty to
provide medical care to protect the childs life, regardless of or provide medical care to protect the childs life, regardless of or
despite their religious beliefs. See also Commonwealth v. Foster, despite their religious beliefs. See also Commonwealth v. Foster,
764 A.2d 1076 (Pa. Super. 2000), appeal denied, 566 Pa. 658, 782 764 A.2d 1076 (Pa. Super. 2000), appeal denied, 566 Pa. 658, 782
A.2d 542 (2001). A.2d 542 (2001).
Commonwealth v. Wallace, 817 A.2d 485 (Pa. Super. 2002), appeal Commonwealth v. Wallace, 817 A.2d 485 (Pa. Super. 2002), appeal
denied, 574 Pa. 774, 833 A.2d 143 (2003), cert. denied, 541 U.S. denied, 574 Pa. 774, 833 A.2d 143 (2003), cert. denied, 541 U.S.
907, 124 S. Ct. 1610, 158 L. Ed.2d 251 (2004) 907, 124 S. Ct. 1610, 158 L. Ed.2d 251 (2004)
Where defendant did nothing to better the conditions of his house Where defendant did nothing to better the conditions of his house
(dirty house with foul odor, dried food and food stains covering (dirty house with foul odor, dried food and food stains covering
the walls, flies, maggots, hundreds of mice, spoiled food in the the walls, flies, maggots, hundreds of mice, spoiled food in the
refrigerator, a hole in the roof, large holes in the kitchen floor and refrigerator, a hole in the roof, large holes in the kitchen floor and
ceiling which allowed water to flow into an electric box in the ceiling which allowed water to flow into an electric box in the
basement), the defendant was guilty of Endangering Welfare of basement), the defendant was guilty of Endangering Welfare of
Children. Children.
The statute does not require actual infliction of physical injury or The statute does not require actual infliction of physical injury or
that the child be in imminent threat of physical harm; exposure that the child be in imminent threat of physical harm; exposure
to danger is sufficient. In this case, even though the defendants to danger is sufficient. In this case, even though the defendants
children suffered no physical harm, by allowing the children to live children suffered no physical harm, by allowing the children to live
with such filth and vermin, with no working furnace for heat, and with such filth and vermin, with no working furnace for heat, and
with water running into the electrical box creating a fire hazard, with water running into the electrical box creating a fire hazard,
the risk of physical and/or psychological harm was present. 817 the risk of physical and/or psychological harm was present. 817
A.2d at 492. A.2d at 492.
(c) Definition of Endangers (c) Definition of Endangers
Although a violation of the accuseds duty of care under Section 4304 Although a violation of the accuseds duty of care under Section 4304
includes exposing a child to danger or putting a child at risk of harm, includes exposing a child to danger or putting a child at risk of harm,
this crime does not require the actual infliction of physical harm. this crime does not require the actual infliction of physical harm.
The statute does not require the actual The statute does not require the actual
infliction of physical injury. Nor does it state infliction of physical injury. Nor does it state
a requirement that the child or children be a requirement that the child or children be
in imminent threat of physical harm. Rather in imminent threat of physical harm. Rather
it is the awareness by the accused that [her] it is the awareness by the accused that [her]
violation of [her] duty of care, protection and violation of [her] duty of care, protection and
support is practically certain to result in the support is practically certain to result in the
endangerment to [her] childrens welfare, endangerment to [her] childrens welfare,
which is proscribed by the statute. which is proscribed by the statute.
Commonwealth v. Winger, 957 A.2d 325, 329 (Pa.Super. 2008); see Commonwealth v. Winger, 957 A.2d 325, 329 (Pa.Super. 2008); see
also, Commonwealth v. Wallace, 817 A.2d 485, 491 (Pa. Super. 2002), also, Commonwealth v. Wallace, 817 A.2d 485, 491 (Pa. Super. 2002),
appeal denied, 574 Pa. 774, 833 A.2d 143 (2003), cert. denied, 541 U.S. appeal denied, 574 Pa. 774, 833 A.2d 143 (2003), cert. denied, 541 U.S.
907 (2004). 907 (2004).
Further, a person must take affirmative, reasonable steps to protect Further, a person must take affirmative, reasonable steps to protect
the child: the child:
The affirmative performance required by The affirmative performance required by

[Section] 4304 cannot be met simply by [Section] 4304 cannot be met simply by
showing any step at all toward preventing showing any step at all toward preventing
harm, however incomplete or ineffectual. An harm, however incomplete or ineffectual. An
act which will negate intent is not necessarily act which will negate intent is not necessarily
one which will provide a successful outcome. one which will provide a successful outcome.
However, the person charged with the duty However, the person charged with the duty
of care is required to take steps that are of care is required to take steps that are
reasonably calculated to achieve success. reasonably calculated to achieve success.
Otherwise, the meaning of the duty of care is Otherwise, the meaning of the duty of care is
eviscerated. eviscerated.
Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa. Super. 1997). Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa. Super. 1997).
B. Official Preventing or Interfering with Report of Suspected Child Abuse B. Official Preventing or Interfering with Report of Suspected Child Abuse

A person in an official capacity A person in an official capacity
Prevents or interferes with Prevents or interferes with
The making of a report of suspected child abuse under 23 Pa.Cons.Stat The making of a report of suspected child abuse under 23 Pa.Cons.Stat
Chapter 63, The Child Protective Services Law. Chapter 63, The Child Protective Services Law.
1. Single Episode 1. Single Episode
Endangering the Welfare of Children is a misdemeanor of the first degree. In Endangering the Welfare of Children is a misdemeanor of the first degree. In
accordance with 18 Pa. Cons. Stat. Ann. 1104, the maximum incarceration accordance with 18 Pa. Cons. Stat. Ann. 1104, the maximum incarceration
sentence is up to five years, and, in accordance with 18 Pa. Cons. Stat. Ann. sentence is up to five years, and, in accordance with 18 Pa. Cons. Stat. Ann.
1101, the maximum fine is $10,000.00. 1101, the maximum fine is $10,000.00.
2. Course of Conduct 2. Course of Conduct
Where there is a course of conduct of endangering the welfare of a child, the Where there is a course of conduct of endangering the welfare of a child, the
offense constitutes a felony of the third degree. In accordance with 18 Pa. offense constitutes a felony of the third degree. In accordance with 18 Pa.
Cons. Stat. Ann. 1103, the maximum incarceration sentence is up to 7 years, Cons. Stat. Ann. 1103, the maximum incarceration sentence is up to 7 years,
and, in accordance with 18 Pa. Cons. Stat. Ann. 1101, the maximum fine is and, in accordance with 18 Pa. Cons. Stat. Ann. 1101, the maximum fine is
$15,000.00. $15,000.00.
Examples of Course of Conduct Examples of Course of Conduct
Commonwealth v. Mackert, 781 A.2d 178 (Pa. Super. 2001), appeal Commonwealth v. Mackert, 781 A.2d 178 (Pa. Super. 2001), appeal
Where defendants two young children had dirty hands, feet and toes, Where defendants two young children had dirty hands, feet and toes,
dirt all over their skin, dirty clothes, numerous bruises on their buttocks, dirt all over their skin, dirty clothes, numerous bruises on their buttocks,
groin, thighs and backs, consistent with intentional infliction, and one groin, thighs and backs, consistent with intentional infliction, and one
of the victims had lost twenty percent of her body weight in a two week of the victims had lost twenty percent of her body weight in a two week
period, and where defendant admits she was the full-time caregiver, jury period, and where defendant admits she was the full-time caregiver, jury
could reasonably conclude course of conduct existed that endangered the could reasonably conclude course of conduct existed that endangered the
welfare of the children. welfare of the children.
Commonwealth v. Ressler, 798 A.2d 221 (Pa. Super. 2002). Commonwealth v. Ressler, 798 A.2d 221 (Pa. Super. 2002).
Course of conduct existed where the sexual abuse of Defendants Course of conduct existed where the sexual abuse of Defendants
stepdaughter occurred over a period of two years. stepdaughter occurred over a period of two years.
Commonwealth v. Popow, 844 A.2d 13 (Pa. Super. 2004). Commonwealth v. Popow, 844 A.2d 13 (Pa. Super. 2004).
Where the entire episode for which defendant was charged was one event Where the entire episode for which defendant was charged was one event
on one night, there was no course of conduct justifying a third degree on one night, there was no course of conduct justifying a third degree
felony charge of Endangering Welfare of Children. The legislative intent felony charge of Endangering Welfare of Children. The legislative intent
of 18 Pa.Cons.Stat.Ann. 4304(b) is to punish a parent who abused his of 18 Pa.Cons.Stat.Ann. 4304(b) is to punish a parent who abused his
or her child over a period of time and for repeated behavior, but not for a or her child over a period of time and for repeated behavior, but not for a
single incident that occurred within minutes. single incident that occurred within minutes.
Commonwealth v. Passarelli, 789 A.2d 708 (Pa. Super. 2001), affm, 573 Commonwealth v. Passarelli, 789 A.2d 708 (Pa. Super. 2001), affm, 573
Pa. 372, 825 A.2d 628 (2003). Pa. 372, 825 A.2d 628 (2003).
Where the Commonwealth labels the charge of Endangering Welfare Where the Commonwealth labels the charge of Endangering Welfare
of Children in the information as a felony of the third degree, but the of Children in the information as a felony of the third degree, but the
descriptive language in the information indicates only a misdemeanor descriptive language in the information indicates only a misdemeanor
and where no course of conduct is alleged, the trial court was correct in and where no course of conduct is alleged, the trial court was correct in
sentencing defendant to a misdemeanor sentence upon a conviction for sentencing defendant to a misdemeanor sentence upon a conviction for
Endangering Welfare of Children Endangering Welfare of Children
The crime of Endangering Welfare of Children under 18 Pa.Cons.Stat.Ann. The crime of Endangering Welfare of Children under 18 Pa.Cons.Stat.Ann.
4304 is not specifically designated as a listed offense under 42 Pa.Cons.Stat. 4304 is not specifically designated as a listed offense under 42 Pa.Cons.Stat.
Ann. 9799.14. Ann. 9799.14.
4.4 CORRUPTION OF MINORS 4.4 CORRUPTION OF MINORS
Types of Corruption of Minors: Types of Corruption of Minors:
Corruption of Minors: Non-Sexual Conduct Corruption of Minors: Non-Sexual Conduct

18 Pa.Cons.Stat.Ann. 6301(a)(1)(i) 18 Pa.Cons.Stat.Ann. 6301(a)(1)(i)
Corruption of Minors: Sexual Conduct Corruption of Minors: Sexual Conduct

18 Pa.Cons.Stat.Ann. 6301(a)(1)(ii) 18 Pa.Cons.Stat.Ann. 6301(a)(1)(ii)
Corruption of Minors: Truancy Corruption of Minors: Truancy

A. Corruption of Minors Non-Sexual Conduct A. Corruption of Minors Non-Sexual Conduct

18 Pa.Cons.Stat.Ann. 6301(a)(1)(i) 18 Pa.Cons.Stat.Ann. 6301(a)(1)(i)
The defendant is age 18 years or older at the time of the incident, and The defendant is age 18 years or older at the time of the incident, and
The minor is under 18 years of age at the time of the incident, and The minor is under 18 years of age at the time of the incident, and
The defendant: The defendant:
By any act corrupts or tends to corrupt the morals of the minor, or By any act corrupts or tends to corrupt the morals of the minor, or
Aids, abets, entices or encourages the minor in the commission of any Aids, abets, entices or encourages the minor in the commission of any
crime, or crime, or
Knowingly assists or encourages the minor in violating his or her parole Knowingly assists or encourages the minor in violating his or her parole
or any order of court. or any order of court.
Grading: Corruption of Minors Non-Sexual Conduct under 18 Pa.Cons.Stat. Grading: Corruption of Minors Non-Sexual Conduct under 18 Pa.Cons.Stat.
Ann. 6301(a)(1)(i) is a misdemeanor of the first degree. Ann. 6301(a)(1)(i) is a misdemeanor of the first degree.
Penalty: In accordance with 18 Pa. Cons. Stat. Ann. 1104, in the case of a Penalty: In accordance with 18 Pa. Cons. Stat. Ann. 1104, in the case of a
misdemeanor of the first degree, a term of imprisonment shall be fixed by the misdemeanor of the first degree, a term of imprisonment shall be fixed by the
court at not more than five years, and, in accordance with 18 Pa. Cons. Stat. Ann. court at not more than five years, and, in accordance with 18 Pa. Cons. Stat. Ann.
1101, a fine not to exceed $10,000.00. 1101, a fine not to exceed $10,000.00.
B. Corruption of Minors Sexual Conduct2 B. Corruption of Minors Sexual Conduct2

The defendant is age 18 years or older at the time of the incident, and The defendant is age 18 years or older at the time of the incident, and
The minor is under 18 years of age at the time of the incident, and The minor is under 18 years of age at the time of the incident, and
The defendant: The defendant:
2 Subsection (a)(1)(ii) was added in 2010, 18 Pa.Cons.stat.ann. 6301(a)(1)(ii). 2 Subsection (a)(1)(ii) was added in 2010, 18 Pa.Cons.stat.ann. 6301(a)(1)(ii).
By any course of conduct in violation of Chapter 31 regarding Sexual By any course of conduct in violation of Chapter 31 regarding Sexual
Offenses, 18 Pa.Cons.Stat.Ann. 3101 et seq. Offenses, 18 Pa.Cons.Stat.Ann. 3101 et seq.
Corrupts or tends to corrupt the morals of the minor, or Corrupts or tends to corrupt the morals of the minor, or
Aids, abets, entices or encourages the minor in the commission of an Aids, abets, entices or encourages the minor in the commission of an
offense under Chapter 31 regarding Sexual Offenses, 18 Pa.Cons.Stat. offense under Chapter 31 regarding Sexual Offenses, 18 Pa.Cons.Stat.
Ann. 3101 et seq. Ann. 3101 et seq.
2. Examples 2. Examples
Commonwealth v. Cesar, 911 A.2d 978 (Pa. Super. 2006), appeal denied, Commonwealth v. Cesar, 911 A.2d 978 (Pa. Super. 2006), appeal denied,
593 Pa. 725, 928 A.2d 1289 (2007) 593 Pa. 725, 928 A.2d 1289 (2007)
Evidence supported conviction for corruption of minors and other related Evidence supported conviction for corruption of minors and other related
sex offenses when victim, age 6 at the time of the incidents, testified that sex offenses when victim, age 6 at the time of the incidents, testified that
defendant, her father, pulled her pajamas down while she was in his room, defendant, her father, pulled her pajamas down while she was in his room,
told her his pee-pee hurt, put his penis in her bottom, and told her not to told her his pee-pee hurt, put his penis in her bottom, and told her not to
tell anybody. tell anybody.
Commonwealth v. Charlton, 902 A.2d 554 (Pa. Super. 2006), appeal Commonwealth v. Charlton, 902 A.2d 554 (Pa. Super. 2006), appeal
Evidence supported conviction for Involuntary Deviate Sexual Intercourse, Evidence supported conviction for Involuntary Deviate Sexual Intercourse,
Corruption of Minors and other related sex offenses when victim, who was Corruption of Minors and other related sex offenses when victim, who was
defendants daughter, testified that defendant rubbed his penis against defendants daughter, testified that defendant rubbed his penis against
her, touched her vagina, and had sexual intercourse with her on multiple her, touched her vagina, and had sexual intercourse with her on multiple
occasions when she was approximately 4 1/2 years old. occasions when she was approximately 4 1/2 years old.
Commonwealth v. Judd, 897 A.2d 1224 (Pa. Super. 2006), appeal denied, Commonwealth v. Judd, 897 A.2d 1224 (Pa. Super. 2006), appeal denied,
590 Pa. 675, 912 A.2d 1291 (2006) 590 Pa. 675, 912 A.2d 1291 (2006)
Evidence supported conviction for rape, corruption of minors and other Evidence supported conviction for rape, corruption of minors and other
sexual violence offenses when, at trial, the minor victims provided the sexual violence offenses when, at trial, the minor victims provided the
following testimony: following testimony:
At trial the oldest victim testified that Judd touched her At trial the oldest victim testified that Judd touched her
both over and under her clothing on many occasions. On both over and under her clothing on many occasions. On
at least one occasion he forced her onto a bed, pulled her at least one occasion he forced her onto a bed, pulled her
pants below her thighs and placed his penis between the pants below her thighs and placed his penis between the
cheeks of her vagina. She also testified that Judd would cheeks of her vagina. She also testified that Judd would
watch pornography tapes with her and on one occasion the watch pornography tapes with her and on one occasion the
five year old was present. The youngest victim also testified five year old was present. The youngest victim also testified
at trial. According to her, Judd pulled her pants down while at trial. According to her, Judd pulled her pants down while
they were in the basement of her grandmothers house and they were in the basement of her grandmothers house and
put his private part in her private part. put his private part in her private part.
897 A.2d at 1234. 897 A.2d at 1234.
Commonwealth v. Smith, 863 A.2d 1172 (Pa. Super. 2004) Commonwealth v. Smith, 863 A.2d 1172 (Pa. Super. 2004)
The defendant was convicted of criminal attempt to commit aggravated The defendant was convicted of criminal attempt to commit aggravated
indecent assault, corruption of minors, and other related sexual assault indecent assault, corruption of minors, and other related sexual assault
charges. The defendant sexually assaulted two relatives of his fiance, charges. The defendant sexually assaulted two relatives of his fiance,
aged sixteen and twelve. He consistently had inappropriate sexual contact aged sixteen and twelve. He consistently had inappropriate sexual contact
with the two underage victims. Both victims were affected sexually with the two underage victims. Both victims were affected sexually
and spiritually, and P.C. thereafter became pregnant by appellant. N.T. and spiritually, and P.C. thereafter became pregnant by appellant. N.T.
11/5/03, at 1820. Viewing all this evidence in the light most favorable 11/5/03, at 1820. Viewing all this evidence in the light most favorable
to the Commonwealth, there was sufficient evidence for the fact-finder to the Commonwealth, there was sufficient evidence for the fact-finder
to conclude appellant committed the charged corrupting the morals of a to conclude appellant committed the charged corrupting the morals of a
minor. minor.
Grading: Corruption of Minors Sexual Conduct under 18 Pa.Cons.Stat.Ann. Grading: Corruption of Minors Sexual Conduct under 18 Pa.Cons.Stat.Ann.
6301(a)(1)(ii) is a felony of the third degree. 6301(a)(1)(ii) is a felony of the third degree.
Penalty: In accordance with 18 Pa.Cons.Stat.Ann. 1103, the maximum Penalty: In accordance with 18 Pa.Cons.Stat.Ann. 1103, the maximum
incarceration sentence is up to 7 years, and, in accordance with 18 Pa. Cons. Stat. incarceration sentence is up to 7 years, and, in accordance with 18 Pa. Cons. Stat.
Ann. 1101, the maximum fine is $15,000.00. Ann. 1101, the maximum fine is $15,000.00.
C. Corruption of Minors Truancy C. Corruption of Minors Truancy

Any person Any person
Who knowingly aids, abets, entices or encourages Who knowingly aids, abets, entices or encourages
A minor younger than 18 years of age A minor younger than 18 years of age
To commit truancy. To commit truancy.
Grading: Corruption of Minors Truancy under 18 Pa.Cons.Stat.Ann. 6301(a) Grading: Corruption of Minors Truancy under 18 Pa.Cons.Stat.Ann. 6301(a)
(2) is a misdemeanor of the first degree. (2) is a misdemeanor of the first degree.
Penalty: A violation of 18 Pa.Cons.Stat.Ann. 6301(a)(2), regarding truancy, is a Penalty: A violation of 18 Pa.Cons.Stat.Ann. 6301(a)(2), regarding truancy, is a
summary offense. In accordance with 18 Pa. Cons. Stat. Ann. 1105, in the case summary offense. In accordance with 18 Pa. Cons. Stat. Ann. 1105, in the case
of a summary conviction, a term of imprisonment shall be fixed by the court at of a summary conviction, a term of imprisonment shall be fixed by the court at
not more than 90 days, and, in accordance with 18 Pa. Cons. Stat. Ann. 1101, a not more than 90 days, and, in accordance with 18 Pa. Cons. Stat. Ann. 1101, a
fine not to exceed $300. fine not to exceed $300.
Multiple Convictions: A second offense within one year of the date of the first Multiple Convictions: A second offense within one year of the date of the first
conviction is graded as a misdemeanor of the third degree. In accordance with conviction is graded as a misdemeanor of the third degree. In accordance with
18 Pa.Cons.Stat.Ann. 1104, in the case of a misdemeanor of the third degree, a 18 Pa.Cons.Stat.Ann. 1104, in the case of a misdemeanor of the third degree, a
term of imprisonment shall be fixed by the court at not more than one year, and, term of imprisonment shall be fixed by the court at not more than one year, and,
in accordance with 18 Pa. Cons. Stat. Ann. 1101, a fine not to exceed $2,,500.00. in accordance with 18 Pa. Cons. Stat. Ann. 1101, a fine not to exceed $2,,500.00.
D. Scope of Corrupts or Tends to Corrupt D. Scope of Corrupts or Tends to Corrupt
General Standard: General Standard:
Standard in deciding what conduct can be said to corrupt the morals of a minor is Standard in deciding what conduct can be said to corrupt the morals of a minor is
the common sense of the community, as well as the sense of decency, propriety the common sense of the community, as well as the sense of decency, propriety
and the morality which most people entertain. Commonwealth v. Pankraz, and the morality which most people entertain. Commonwealth v. Pankraz,
554 A. 2d 974, 977 (Pa. Super. 1989), appeal denied, 522 Pa. 618, 563 A.2d 887 554 A. 2d 974, 977 (Pa. Super. 1989), appeal denied, 522 Pa. 618, 563 A.2d 887
(1989), quoting Commonwealth v. Randall, 133 A.2d 276 (Pa. Super. 1957), cert (1989), quoting Commonwealth v. Randall, 133 A.2d 276 (Pa. Super. 1957), cert
denied, 355 U.S. 954 (1958); Commonwealth v. Decker, 698 A.2d 99, 101(Pa. denied, 355 U.S. 954 (1958); Commonwealth v. Decker, 698 A.2d 99, 101(Pa.
Since the statute is protective in nature and designed to cover a broad range Since the statute is protective in nature and designed to cover a broad range
of conduct in order to safeguard the welfare and security of our children, the of conduct in order to safeguard the welfare and security of our children, the
statute must be drawn broadly. Commonwealth v. Barnette, 760 A. 2d 1166, statute must be drawn broadly. Commonwealth v. Barnette, 760 A. 2d 1166,
1173 (Pa. Super. 2000), appeal denied, 566 Pa. 634, 781 A.2d 138 (2001). 1173 (Pa. Super. 2000), appeal denied, 566 Pa. 634, 781 A.2d 138 (2001).
Tends to Corrupt: Tends to Corrupt:
There is no need to prove that the minors morals were actually corrupted. The There is no need to prove that the minors morals were actually corrupted. The
Commonwealth need only prove that the conduct of the defendant tended to Commonwealth need only prove that the conduct of the defendant tended to
corrupt the minors morals. Commonwealth v. Barnette, 760 A.2d 1166 (Pa. corrupt the minors morals. Commonwealth v. Barnette, 760 A.2d 1166 (Pa.
Super. 2000) appeal denied, 566 Pa. 634, 781 A.2d 138 (2001) Super. 2000) appeal denied, 566 Pa. 634, 781 A.2d 138 (2001)
In Barnette, the defendant was convicted of Corruption of Minors In Barnette, the defendant was convicted of Corruption of Minors
where he requested a 16-year-old youth to sign for a package containing where he requested a 16-year-old youth to sign for a package containing
marijuana even though he told the youth it contained knick knacks. marijuana even though he told the youth it contained knick knacks.
In Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (Pa. 1980), In Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (Pa. 1980),
the defendant, 18 years old at the time of the offense, pretended to give a the defendant, 18 years old at the time of the offense, pretended to give a
physical examination to two young boys, aged eight and twelve, in order to physical examination to two young boys, aged eight and twelve, in order to
admit them into his private club. He make them undress, and brushed admit them into his private club. He make them undress, and brushed
the genitals of one of them. He looked at their nude bodies. This was the genitals of one of them. He looked at their nude bodies. This was
sufficient to establish tends to corrupt even though the two boys were sufficient to establish tends to corrupt even though the two boys were
unaware that the contact was of an offensive nature. unaware that the contact was of an offensive nature.
No Criminal Activity Required: No Criminal Activity Required:
Underlying criminal activity is not required. Statute states that conduct Underlying criminal activity is not required. Statute states that conduct
which corrupts or tends to corrupt is by any act not by any criminal act. which corrupts or tends to corrupt is by any act not by any criminal act.
Commonwealth v. Decker, 698 A.2d 99 (Pa. Super. 1997) appeal denied, 550 Pa. Commonwealth v. Decker, 698 A.2d 99 (Pa. Super. 1997) appeal denied, 550 Pa.
698, 705 A.2d 1304 (1998). In Decker, the Superior Court stated: 698, 705 A.2d 1304 (1998). In Decker, the Superior Court stated:
[W]hile it is true that generally a corruption of minors charge [W]hile it is true that generally a corruption of minors charge
accompanies a more serious charge such as involuntary accompanies a more serious charge such as involuntary
deviate sexual intercourse, statutory rape, indecent assault, deviate sexual intercourse, statutory rape, indecent assault,
etc., nowhere in the statute is there a requirement of such etc., nowhere in the statute is there a requirement of such
underlying criminal activity, nor will one find a prohibition underlying criminal activity, nor will one find a prohibition
against a charge of corruption of minors standing alone. against a charge of corruption of minors standing alone.
Moreover, the statute states by any act not by any criminal Moreover, the statute states by any act not by any criminal
act.. The fact that a corruption of minors charge is generally act.. The fact that a corruption of minors charge is generally
coupled with additional underlying criminal activity is more coupled with additional underlying criminal activity is more
a reflection of the usual application of the statute than it is a reflection of the usual application of the statute than it is
legal precedent. We believe that if our legislators intended to legal precedent. We believe that if our legislators intended to
require some underlying criminal activity as the basis for a require some underlying criminal activity as the basis for a
corruption of minors charge, they would have written it into corruption of minors charge, they would have written it into
the statute. the statute.
698 A.2d at 100. 698 A.2d at 100.
Conviction for corruption of minors charge can still stand where there are Conviction for corruption of minors charge can still stand where there are
acquittals of other offenses which were specified in the information filed against acquittals of other offenses which were specified in the information filed against
the defendant as the corrupting acts. Commonwealth v. Bricker, 580 A.2d 388, the defendant as the corrupting acts. Commonwealth v. Bricker, 580 A.2d 388,
In Commonwealth v. Miller, 657 A. 2d 946, 948 (Pa. Super. 1995), the defendants In Commonwealth v. Miller, 657 A. 2d 946, 948 (Pa. Super. 1995), the defendants
convictions for Corruption of Minors in both cases stand even though both convictions for Corruption of Minors in both cases stand even though both
were acquitted of Indecent Assault charges. The courts held that the jury had were acquitted of Indecent Assault charges. The courts held that the jury had
the prerogative to convict defendants on the corruption of minors charge while the prerogative to convict defendants on the corruption of minors charge while
at the same time acquitting them on the charge of indecent assault, and that at the same time acquitting them on the charge of indecent assault, and that
inconsistent verdicts will stand as long as there is sufficient evidence to sustain inconsistent verdicts will stand as long as there is sufficient evidence to sustain
the conviction. the conviction.
No Injury Required: No Injury Required:
Injury is similarly not required for corruption of minors. Commonwealth v. Injury is similarly not required for corruption of minors. Commonwealth v.
Berry, 513 A. 2d 410, 413 (Pa. Super. 1986). Berry, 513 A. 2d 410, 413 (Pa. Super. 1986).
Sexual Intercourse Sufficient Proof of Corruption: Sexual Intercourse Sufficient Proof of Corruption:
Sexual intercourse with a minor is considered corruption of morals. Sexual intercourse with a minor is considered corruption of morals.
Commonwealth v. Berry, 513 A. 2d 410, 413 (Pa. Super. 1986). Commonwealth v. Berry, 513 A. 2d 410, 413 (Pa. Super. 1986).
E. Adjudication of Delinquency Unnecessary E. Adjudication of Delinquency Unnecessary
(b) Adjudication of delinquency unnecessary.--A conviction (b) Adjudication of delinquency unnecessary.--A conviction
under the provisions of this section may be had whether under the provisions of this section may be had whether
or not the jurisdiction of any juvenile court has attached or or not the jurisdiction of any juvenile court has attached or
shall thereafter attach to such minor or whether or not such shall thereafter attach to such minor or whether or not such
minor has been adjudicated a delinquent or shall thereafter be minor has been adjudicated a delinquent or shall thereafter be
adjudicated a delinquent. adjudicated a delinquent.
F. Presumptions Regarding Minors Age and Court Orders F. Presumptions Regarding Minors Age and Court Orders
(c) Presumptions.--In trials and hearings upon charges of (c) Presumptions.--In trials and hearings upon charges of
violating the provisions of this section, knowledge of the violating the provisions of this section, knowledge of the
minors age and of the courts orders and decrees concerning minors age and of the courts orders and decrees concerning
such minor shall be presumed in the absence of proof to the such minor shall be presumed in the absence of proof to the
contrary. contrary.
G. Mistakes as to Age G. Mistakes as to Age
Victim under 16 Years of Age: Victim under 16 Years of Age:
Whenever in this section the criminality of conduct depends upon the corruption Whenever in this section the criminality of conduct depends upon the corruption
of a minor whose actual age is under 16 years, it is no defense that the actor did of a minor whose actual age is under 16 years, it is no defense that the actor did
not know the age of the minor or reasonably believed the minor to be older than not know the age of the minor or reasonably believed the minor to be older than
18 years. 18 Pa.Cons.Stat.Ann. 6301(d). 18 years. 18 Pa.Cons.Stat.Ann. 6301(d).
Victim Between 16 and 18 Years of Age: Victim Between 16 and 18 Years of Age:
Whenever in this section the criminality of conduct depends upon the corruption Whenever in this section the criminality of conduct depends upon the corruption
of a minor whose actual age is 16 years or more but less than 18 years, it is a of a minor whose actual age is 16 years or more but less than 18 years, it is a
defense for the actor to prove by a preponderance of the evidence that he defense for the actor to prove by a preponderance of the evidence that he
reasonably believed the minor to be 18 years or older. 18 Pa.Cons.Stat.Ann. reasonably believed the minor to be 18 years or older. 18 Pa.Cons.Stat.Ann.
6301(d). 6301(d).
H. Sex Offender Registration H. Sex Offender Registration
The crime of Corruption of Minors Sexual Conduct under 18 Pa.Cons.Stat.Ann. The crime of Corruption of Minors Sexual Conduct under 18 Pa.Cons.Stat.Ann.
6301(a)(1)(ii) is a Tier I Sexual Offense under 42 Pa.Cons.Stat.Ann. 9799.14. 6301(a)(1)(ii) is a Tier I Sexual Offense under 42 Pa.Cons.Stat.Ann. 9799.14.
A Tier I sexual offense requires registration with the Pennsylvania State Police A Tier I sexual offense requires registration with the Pennsylvania State Police
for a period of 15 years.3 See 42 Pa.Cons.Stat.Ann. 9799.15. for a period of 15 years.3 See 42 Pa.Cons.Stat.Ann. 9799.15.
OFFENDER REGISTRATION and NOTIFICATION. OFFENDER REGISTRATION and NOTIFICATION.
4.5 SEXUAL ABUSE OF CHILDREN 4.5 SEXUAL ABUSE OF CHILDREN
Types of Sexual Abuse of Children: Types of Sexual Abuse of Children:
The Defendant Causes or Permits the Child to be Filmed The Defendant Causes or Permits the Child to be Filmed
18 Pa.Cons.Stat.Ann. 6312(b)(1) 18 Pa.Cons.Stat.Ann. 6312(b)(1)
The Defendant Films or Photographs a Child The Defendant Films or Photographs a Child
Dissemination of Child Pornography Dissemination of Child Pornography

18 Pa.Cons.Stat.Ann. 6312(c) 18 Pa.Cons.Stat.Ann. 6312(c)
Viewing or Possessing Child Pornography Viewing or Possessing Child Pornography

18 Pa.Cons.Stat.Ann. 6312(d) 18 Pa.Cons.Stat.Ann. 6312(d)
A. The Defendant Causes or Knowingly Permits the Child to be Filmed A. The Defendant Causes or Knowingly Permits the Child to be Filmed

The defendant causes or knowingly permits a child under the age of 18 The defendant causes or knowingly permits a child under the age of 18
years years
to engage in a prohibited sexual act or in the simulation of such act, and to engage in a prohibited sexual act or in the simulation of such act, and
knows, has reason to know or intends that such act may be photographed, knows, has reason to know or intends that such act may be photographed,
videotaped, depicted on computer or filmed. videotaped, depicted on computer or filmed.
2. Grading and Penalty A violation of this subsection is a felony of the second 2. Grading and Penalty A violation of this subsection is a felony of the second
degree. In accordance with 18 Pa.Cons.Stat.Ann. 1103, the maximum degree. In accordance with 18 Pa.Cons.Stat.Ann. 1103, the maximum
incarceration sentence is up to ten years, and, in accordance with 18 Pa.Cons. incarceration sentence is up to ten years, and, in accordance with 18 Pa.Cons.
Stat.Ann. 1101, the maximum fine is $25,000.00. Stat.Ann. 1101, the maximum fine is $25,000.00.
3. Enhanced Grading and Penalty If during the course of this offense indecent 3. Enhanced Grading and Penalty If during the course of this offense indecent
contact with a child is depicted, the grading is a felony of the first degree.4 In contact with a child is depicted, the grading is a felony of the first degree.4 In
accordance with 18 Pa.Cons.Stat.Ann. 1103, the maximum incarceration accordance with 18 Pa.Cons.Stat.Ann. 1103, the maximum incarceration
sentence is up to twenty years, and, in accordance with 18 Pa.Cons.Stat.Ann. sentence is up to twenty years, and, in accordance with 18 Pa.Cons.Stat.Ann.
4. Definition of Indecent contact from 18 Pa.Cons.Stat.Ann. 3101: Any 4. Definition of Indecent contact from 18 Pa.Cons.Stat.Ann. 3101: Any
touching of the sexual or other intimate parts of the person for the purpose of touching of the sexual or other intimate parts of the person for the purpose of
arousing or gratifying sexual desire, in any person. arousing or gratifying sexual desire, in any person.
5. Mistake as to Age, 18 Pa.Cons.Stat.Ann. 6312(e.1) - it is no defense that 5. Mistake as to Age, 18 Pa.Cons.Stat.Ann. 6312(e.1) - it is no defense that
the defendant did not know the age of the child. Neither a misrepresentation the defendant did not know the age of the child. Neither a misrepresentation
4 See 18 Pa.Cons.stat.ann. 6312(d.1)(3). 4 See 18 Pa.Cons.stat.ann. 6312(d.1)(3).
of age by the child nor a bona fide belief that the person is over the specified of age by the child nor a bona fide belief that the person is over the specified
age is a defense. age is a defense.
B. The Defendant Films or Photographs A Child B. The Defendant Films or Photographs A Child

The defendant knowingly photographed, videotaped, depicted on a The defendant knowingly photographed, videotaped, depicted on a
computer or filmed computer or filmed
a child under the age of 18 years a child under the age of 18 years
engaging in a prohibited sexual act or in the simulation of such act. engaging in a prohibited sexual act or in the simulation of such act.
2. Grading and Penalty A violation of this subsection is a felony of the second 2. Grading and Penalty A violation of this subsection is a felony of the second
incarceration sentence is up to ten years, and, in accordance with 18 Pa.Cons. incarceration sentence is up to ten years, and, in accordance with 18 Pa.Cons.
Stat.Ann. 1101, the maximum fine is $25,000.00. Stat.Ann. 1101, the maximum fine is $25,000.00.
3. Enhanced Grading and Penalty If during the course of this offense indecent 3. Enhanced Grading and Penalty If during the course of this offense indecent
contact with a child is depicted, the grading is a felony of the first degree.5 In contact with a child is depicted, the grading is a felony of the first degree.5 In
sentence is up to twenty years, and, in accordance with 18 Pa.Cons.Stat.Ann. sentence is up to twenty years, and, in accordance with 18 Pa.Cons.Stat.Ann.
5. Mistake as to Age, 18 Pa.Cons.Stat.Ann. 6312(e.1) - it is no defense that 5. Mistake as to Age, 18 Pa.Cons.Stat.Ann. 6312(e.1) - it is no defense that
the defendant did not know the age of the child. Neither a misrepresentation the defendant did not know the age of the child. Neither a misrepresentation
of age by the child nor a bona fide belief that the person is over the specified of age by the child nor a bona fide belief that the person is over the specified
age is a defense. age is a defense.
C. Dissemination of Child Pornography C. Dissemination of Child Pornography

The defendant knowingly sells, distributes, delivers, disseminates, The defendant knowingly sells, distributes, delivers, disseminates,
transfers, displays or exhibits to others, or transfers, displays or exhibits to others, or
The defendant possesses for the purpose of sale, distribution, delivery, The defendant possesses for the purpose of sale, distribution, delivery,
dissemination, transfer, display or exhibition to others, dissemination, transfer, display or exhibition to others,
any book, magazine, pamphlet, slide, photograph, film, videotape, any book, magazine, pamphlet, slide, photograph, film, videotape,
computer depiction or other material, computer depiction or other material,
which depicts a child under the age of 18 years engaging in a prohibited which depicts a child under the age of 18 years engaging in a prohibited
sexual act or in the simulation of such act. sexual act or in the simulation of such act.
2. Grading and Penalty - A first offense under this subsection is a felony of the 2. Grading and Penalty - A first offense under this subsection is a felony of the
third degree. For a felony of the third degree, in accordance with 18 Pa.Cons. third degree. For a felony of the third degree, in accordance with 18 Pa.Cons.
Stat.Ann. 1103, the maximum incarceration sentence is seven years, and, Stat.Ann. 1103, the maximum incarceration sentence is seven years, and,
in accordance with 18 Pa. Cons. Stat. Ann. 1101, the maximum fine is in accordance with 18 Pa. Cons. Stat. Ann. 1101, the maximum fine is
$15,000.00. $15,000.00.
3. Multiple Offenses - A second or subsequent offense under this subsection 3. Multiple Offenses - A second or subsequent offense under this subsection
is a felony of the second degree.6 For a felony of the second degree, in is a felony of the second degree.6 For a felony of the second degree, in
sentence is ten years, and, in accordance with 18 Pa.Cons.Stat.Ann. 1101, sentence is ten years, and, in accordance with 18 Pa.Cons.Stat.Ann. 1101,
the maximum fine is $25,000.00. the maximum fine is $25,000.00.
4. Enhanced Grading and Penalty - If during the course of this offense indecent 4. Enhanced Grading and Penalty - If during the course of this offense indecent
contact with a child is depicted in any of the material, the grading of the first contact with a child is depicted in any of the material, the grading of the first
offense will be a felony of the second degree.7 For a felony of the second degree, offense will be a felony of the second degree.7 For a felony of the second degree,
in accordance with 18 Pa.Cons.Stat.Ann. 1103, the maximum incarceration in accordance with 18 Pa.Cons.Stat.Ann. 1103, the maximum incarceration
D. Viewing or Possessing Child Pornography D. Viewing or Possessing Child Pornography

The defendant intentionally views, or The defendant intentionally views, or
The defendant knowingly possesses or controls8 The defendant knowingly possesses or controls8
Any book, magazine, pamphlet, slide, photograph, film, videotape, Any book, magazine, pamphlet, slide, photograph, film, videotape,
computer depiction or other material computer depiction or other material
Depicting a child under the age of 18 years engaging in a prohibited sexual Depicting a child under the age of 18 years engaging in a prohibited sexual
act or in the simulation of such act. act or in the simulation of such act.
2. Grading and Penalty - A first offense under this subsection is a felony of 2. Grading and Penalty - A first offense under this subsection is a felony of
the third degree. For a felony of the third degree, in accordance with 18 Pa. the third degree. For a felony of the third degree, in accordance with 18 Pa.
Cons. Stat. Ann. 1103, the maximum incarceration sentence is seven years, Cons. Stat. Ann. 1103, the maximum incarceration sentence is seven years,
$15,000.00. $15,000.00.
6 See 18 Pa.Cons.stat.ann. 6312(d.1)(2)(ii). 6 See 18 Pa.Cons.stat.ann. 6312(d.1)(2)(ii).

8 The act of accessing and viewing child pornography over the internet constituted control under this subsection. Commonwealth v. 8 The act of accessing and viewing child pornography over the internet constituted control under this subsection. Commonwealth v.
Diodoro, 601 Pa. 6, 970 A.2d 1100 (2009), cert. denied, 130 S.Ct. 200, 175 L.Ed.2d 127 (2009). Diodoro, 601 Pa. 6, 970 A.2d 1100 (2009), cert. denied, 130 S.Ct. 200, 175 L.Ed.2d 127 (2009).
3. Multiple Offenses - A second or subsequent offense under this subsection is 3. Multiple Offenses - A second or subsequent offense under this subsection is
a felony of the second degree. For a felony of the second degree, in accordance a felony of the second degree. For a felony of the second degree, in accordance
with 18 Pa. Cons. Stat. Ann. 1103, the maximum incarceration sentence with 18 Pa. Cons. Stat. Ann. 1103, the maximum incarceration sentence
is ten years, and, in accordance with 18 Pa. Cons. Stat. Ann. 1101, the is ten years, and, in accordance with 18 Pa. Cons. Stat. Ann. 1101, the
maximum fine is $25,000.00. maximum fine is $25,000.00.
4. Enhanced Grading and Penalty - If during the course of this offense indecent 4. Enhanced Grading and Penalty - If during the course of this offense indecent
contact with a child is depicted in any of the material, the grading of the first contact with a child is depicted in any of the material, the grading of the first
offense will be a felony of the second degree.9 For a felony of the second degree, offense will be a felony of the second degree.9 For a felony of the second degree,
in accordance with 18 Pa.Cons.Stat.Ann. 1103, the maximum incarceration in accordance with 18 Pa.Cons.Stat.Ann. 1103, the maximum incarceration
E. Purpose of Statute E. Purpose of Statute
The purpose of Section 6312 is plainly to protect children, end the abuse The purpose of Section 6312 is plainly to protect children, end the abuse
and exploitation of children, and eradicate the production and supply of child and exploitation of children, and eradicate the production and supply of child
pornography. Commonwealth v. Diodoro, 601 Pa. 6, 970 A.2d 1100, 1107 (2009), pornography. Commonwealth v. Diodoro, 601 Pa. 6, 970 A.2d 1100, 1107 (2009),
cert. denied, 558 U.S. 875, 130 S.Ct. 200, 175 L.Ed.2d 127 (2009). cert. denied, 558 U.S. 875, 130 S.Ct. 200, 175 L.Ed.2d 127 (2009).
The purpose of this statute, prohibiting sexual abuse of children, is to criminalize The purpose of this statute, prohibiting sexual abuse of children, is to criminalize
the filming, depiction, possession or control of photographs or computer the filming, depiction, possession or control of photographs or computer
depictions of child pornography. depictions of child pornography.
The United States Supreme Court has clearly and laudably articulated that the The United States Supreme Court has clearly and laudably articulated that the
prevention of sexual exploitation and abuse of children constitutes a government prevention of sexual exploitation and abuse of children constitutes a government
objective of surpassing importance. New York v. Ferber, 458 U.S. 747, 757, objective of surpassing importance. New York v. Ferber, 458 U.S. 747, 757,
102 S.Ct. 3348, 3355, 73 L.Ed.2d 1113 (1982). The United States Supreme 102 S.Ct. 3348, 3355, 73 L.Ed.2d 1113 (1982). The United States Supreme
Court has determined that laws proscribing the possession, dissemination and Court has determined that laws proscribing the possession, dissemination and
viewing of child pornography are valid against First Amendment challenges. viewing of child pornography are valid against First Amendment challenges.
Commonwealth v. Baker, --- Pa. ---, 78 A.3d 1044, 1050 (2013). Commonwealth v. Baker, --- Pa. ---, 78 A.3d 1044, 1050 (2013).
Transfer as used in 6312(c) herein means a change of possession from one Transfer as used in 6312(c) herein means a change of possession from one
person to another. Commonwealth v. McCue, 487 A.2d 880, 883 (Pa.Super. 1983). person to another. Commonwealth v. McCue, 487 A.2d 880, 883 (Pa.Super. 1983).
Consent: Consent is no defense. A child victimized by having pornographic Consent: Consent is no defense. A child victimized by having pornographic
pictures taken of him or her cannot legally consent. Commonwealth v. Kitchen, pictures taken of him or her cannot legally consent. Commonwealth v. Kitchen,
814 A.2d 209, 213 (Pa. Super. 2002), affm, 576 Pa. 229, 839 A.2d 184 (2003). 814 A.2d 209, 213 (Pa. Super. 2002), affm, 576 Pa. 229, 839 A.2d 184 (2003).
In Kitchen, the defendants conviction for taking and possessing pornographic In Kitchen, the defendants conviction for taking and possessing pornographic
photographs of his 16 year old paramour, with whom he had a child, stands photographs of his 16 year old paramour, with whom he had a child, stands
regardless of the victims consent or cohabitation with the defendant. regardless of the victims consent or cohabitation with the defendant.
F. Evidence of Age - 18 Pa.Stat.6312(e) F. Evidence of Age - 18 Pa.Stat.6312(e)
In the event a person involved in a prohibited sexual act is alleged to be a child In the event a person involved in a prohibited sexual act is alleged to be a child
under the age of 18 years, competent expert testimony is sufficient to establish under the age of 18 years, competent expert testimony is sufficient to establish
the age of said person. 18 Pa.Cons.Stat.Ann. 6312(e). the age of said person. 18 Pa.Cons.Stat.Ann. 6312(e).
Proof of age, like proof of any other material fact, can be accomplished by the use Proof of age, like proof of any other material fact, can be accomplished by the use
of either direct or circumstantial evidence, or both. Proof of age is not limited of either direct or circumstantial evidence, or both. Proof of age is not limited
to expert testimony. The trier of fact can assess the age of the child depicted to expert testimony. The trier of fact can assess the age of the child depicted
based on everyday observations and common experiences with the requisite based on everyday observations and common experiences with the requisite
degree of certainty to satisfy the standard of proof beyond a reasonable doubt. degree of certainty to satisfy the standard of proof beyond a reasonable doubt.
Commonwealth v. Robertson-Dewar, 829 A.2d 1207 (Pa. Super 2003), appeal Commonwealth v. Robertson-Dewar, 829 A.2d 1207 (Pa. Super 2003), appeal
This section does not mandate expert opinion testimony to satisfy the element This section does not mandate expert opinion testimony to satisfy the element
of age but merely allows that if competent expert testimony is presented, it is of age but merely allows that if competent expert testimony is presented, it is
sufficient to establish the age element. Commonwealth v. Robertson-Dewar, sufficient to establish the age element. Commonwealth v. Robertson-Dewar,
829 A.2d 1207, 1212 (Pa. Super 2003), appeal denied, 576 Pa. 712, 839 A.2d 352 829 A.2d 1207, 1212 (Pa. Super 2003), appeal denied, 576 Pa. 712, 839 A.2d 352
(2003). (2003).
1. Mistake as to Age 18 Pa.Cons.Stat.Ann. 6312 (e.1) 1. Mistake as to Age 18 Pa.Cons.Stat.Ann. 6312 (e.1)
Under subsection (b) only (relating to the filming of a child during or Under subsection (b) only (relating to the filming of a child during or
simulation of sexual acts), it is no defense that the defendant did not know simulation of sexual acts), it is no defense that the defendant did not know
the age of the child. Neither a misrepresentation of age by the child nor a the age of the child. Neither a misrepresentation of age by the child nor a
bona fide belief that the person is over the specified age is a defense. bona fide belief that the person is over the specified age is a defense.
G. Sex Offender Registration G. Sex Offender Registration
The crime of Sexual Abuse of Children under 18 Pa.Cons.Stat.Ann. 6312 is a Tier The crime of Sexual Abuse of Children under 18 Pa.Cons.Stat.Ann. 6312 is a Tier
I Sexual Offense under 42 Pa.Cons.Stat.Ann. 9799.14. A Tier I sexual offense I Sexual Offense under 42 Pa.Cons.Stat.Ann. 9799.14. A Tier I sexual offense
requires registration with the Pennsylvania State Police for a period of 15 years.10 requires registration with the Pennsylvania State Police for a period of 15 years.10
See 42 Pa.Cons.Stat.Ann. 9799.15. See 42 Pa.Cons.Stat.Ann. 9799.15.
H. Exception to Criminal Ramifications H. Exception to Criminal Ramifications
This section does not apply to any material that is viewed, possessed, controlled, This section does not apply to any material that is viewed, possessed, controlled,
brought or caused to be brought into this Commonwealth, or presented for a brought or caused to be brought into this Commonwealth, or presented for a
bona fide educational, scientific, governmental or judicial purpose. 18 Pa.Cons. bona fide educational, scientific, governmental or judicial purpose. 18 Pa.Cons.
Stat.Ann. 6312(f). Stat.Ann. 6312(f).
This section does not apply to conduct prohibited under 18 Pa.Cons.Stat.Ann. This section does not apply to conduct prohibited under 18 Pa.Cons.Stat.Ann.
6321, Transmission of Sexually Explicit Images By Minor, except as excluded 6321, Transmission of Sexually Explicit Images By Minor, except as excluded
by section 6321(d). by section 6321(d).
This section does not apply to an individual under 18 years of age who knowingly This section does not apply to an individual under 18 years of age who knowingly
views, photographs, videotapes, depicts on a computer or films or possesses views, photographs, videotapes, depicts on a computer or films or possesses
or intentionally views a visual depiction of himself alone in a state of nudity or intentionally views a visual depiction of himself alone in a state of nudity
as defined in 18 Pa.Cons.Stat.Ann. 6321, Transmission of Sexually Explicit as defined in 18 Pa.Cons.Stat.Ann. 6321, Transmission of Sexually Explicit
Images By Minor. Images By Minor.
I. Computer Depiction includes Streaming Video I. Computer Depiction includes Streaming Video
Communications on streaming video, such as Skype, which include depictions of Communications on streaming video, such as Skype, which include depictions of
a minor engaged in a prohibited sexual act or in the simulation of such act, satisfy a minor engaged in a prohibited sexual act or in the simulation of such act, satisfy
the element of computer depiction under 18 Pa.Cons.Stat.Ann. 6312(d). the element of computer depiction under 18 Pa.Cons.Stat.Ann. 6312(d).
Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013): Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013):
Skype is an internet communication service that provides Skype is an internet communication service that provides
live, two-way audio and video communication. Akin to the live, two-way audio and video communication. Akin to the
telephonic communication foreshadowed by Dick Tracy and telephonic communication foreshadowed by Dick Tracy and
the Jetsons, Skype permits individuals using webcams to see the Jetsons, Skype permits individuals using webcams to see
each other while conversing over the internet. During the live- each other while conversing over the internet. During the live-
streaming communication, the images recorded by a webcam streaming communication, the images recorded by a webcam
appear on the other users monitor screen. Any person within appear on the other users monitor screen. Any person within
eyesight and earshot of the computer monitor can observe the eyesight and earshot of the computer monitor can observe the
participants image and hear his or her words. In other words, participants image and hear his or her words. In other words,
Skype offers a program that permits a person to see and hear Skype offers a program that permits a person to see and hear
another person, who is in a different location, using a webcam another person, who is in a different location, using a webcam
and the internet. and the internet.
When a person uses Skype, his or her computer monitor When a person uses Skype, his or her computer monitor
displays the video images of the other participant. We have displays the video images of the other participant. We have
little trouble concluding that such a display amounts to little trouble concluding that such a display amounts to
showing or representing an image as the common and showing or representing an image as the common and
approved usages of the term contemplates. We find the example approved usages of the term contemplates. We find the example
attendant to Websters definition of depict to be particularly attendant to Websters definition of depict to be particularly
instructive. In that example, the photograph depicts two instructive. In that example, the photograph depicts two
brothers standing in front of a store. The common usage of the brothers standing in front of a store. The common usage of the
term includes a physical object, the photograph, displaying a term includes a physical object, the photograph, displaying a
real image. We find little difference between analogizing this real image. We find little difference between analogizing this
common usage of the term to an image, live or still, appearing common usage of the term to an image, live or still, appearing
on a computer screen. A person who looks at the picture in on a computer screen. A person who looks at the picture in
the example will see two brothers standing in front of a store. the example will see two brothers standing in front of a store.
That image is depicted to the viewer. There would be no That image is depicted to the viewer. There would be no
difference if the person viewed that image in a photograph difference if the person viewed that image in a photograph
or on a computer screen. It follows then that Levys computer or on a computer screen. It follows then that Levys computer
depicted a fifteen-year-old girl masturbating. Thus, there depicted a fifteen-year-old girl masturbating. Thus, there
is no question that images displayed on a computer screen is no question that images displayed on a computer screen
depict their subject according to the common and approved depict their subject according to the common and approved
usage of the term. usage of the term.
83 A.2d at 463. 83 A.2d at 463.
4.6 UNLAWFUL CONTACT WITH MINOR 4.6 UNLAWFUL CONTACT WITH MINOR
A. Statutory Citation and Purpose of Statute A. Statutory Citation and Purpose of Statute
Basically, the elements of this crime consist of intentionally, either directly or Basically, the elements of this crime consist of intentionally, either directly or
indirectly, contacting or communicating with a minor for the purpose of engaging indirectly, contacting or communicating with a minor for the purpose of engaging
in a sexual offense. Commonwealth v. Oliver, 946 A.2d 1111, 1113 (Pa.Super. in a sexual offense. Commonwealth v. Oliver, 946 A.2d 1111, 1113 (Pa.Super.
2008), appeal denied, 599 Pa. 690, 960 A.2d 838 (2008); Commonwealth v. 2008), appeal denied, 599 Pa. 690, 960 A.2d 838 (2008); Commonwealth v.
Morgan, 913 A.2d 906, 910 (Pa.Super. 2006), appeal denied, 592 Pa. 788, 927 Morgan, 913 A.2d 906, 910 (Pa.Super. 2006), appeal denied, 592 Pa. 788, 927
A.2d 623 (2007). A.2d 623 (2007).
The Superior Court in Commonwealth v. Rose, 960 A.2d 149 (Pa. Super. 2008), The Superior Court in Commonwealth v. Rose, 960 A.2d 149 (Pa. Super. 2008),
appeal denied, 602 Pa. 657, 980 A.2d 110 (2009), remarked that unlawful contact appeal denied, 602 Pa. 657, 980 A.2d 110 (2009), remarked that unlawful contact
with a minor is best understood as unlawful communication with a minor. Id., with a minor is best understood as unlawful communication with a minor. Id.,
960 A.2d at 152 (emphasis in original). 960 A.2d at 152 (emphasis in original).
B. Elements of Offense B. Elements of Offense
The elements, as specified in section (a), are as follows: The elements, as specified in section (a), are as follows:
A person commits an offense under this section if he intentionally A person commits an offense under this section if he intentionally
contacts a minor, or a law enforcement officer acting in the performance contacts a minor, or a law enforcement officer acting in the performance
of duties who has assumed the identity of a minor, of duties who has assumed the identity of a minor,
for the purpose of engaging in a prohibited act, and for the purpose of engaging in a prohibited act, and
either the person initiating the contact or the person being contacted either the person initiating the contact or the person being contacted
is within this Commonwealth. is within this Commonwealth.
The prohibited acts are as follows: The prohibited acts are as follows:
(1) Any of the offenses enumerated in Chapter 31 (relating to (1) Any of the offenses enumerated in Chapter 31 (relating to
sexual offenses); sexual offenses);
(2) Open lewdness as defined in 18 Pa.Cons.Stat.Ann. 5901 (2) Open lewdness as defined in 18 Pa.Cons.Stat.Ann. 5901
(relating to open lewdness);11 (relating to open lewdness);11
11 A person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely to be observed by others who 11 A person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely to be observed by others who
would be affronted or alarmed. 18 Pa.Cons.stat.ann. 5901. would be affronted or alarmed. 18 Pa.Cons.stat.ann. 5901.
(3) Prostitution as defined in 18 Pa.Cons.Stat.Ann. 5902 (relating (3) Prostitution as defined in 18 Pa.Cons.Stat.Ann. 5902 (relating
to prostitution and related offenses);12 to prostitution and related offenses);12
(4) Obscene and other sexual materials and performances as (4) Obscene and other sexual materials and performances as
defined in 18 Pa.Cons.Stat.Ann. 5903;13 defined in 18 Pa.Cons.Stat.Ann. 5903;13
(5) Sexual abuse of children as defined in 18 Pa.Cons.Stat.Ann. (5) Sexual abuse of children as defined in 18 Pa.Cons.Stat.Ann.
6312;14 6312;14
(6) Sexual exploitation of children as defined in 18 Pa.Cons.Stat. (6) Sexual exploitation of children as defined in 18 Pa.Cons.Stat.
Ann. 6320.15 Ann. 6320.15
Grading Grading
A violation of subsection (a) is: A violation of subsection (a) is:
an offense of the same grade and degree as the most serious underlying an offense of the same grade and degree as the most serious underlying
offense listed in subsection (a) for which the defendant contacted the offense listed in subsection (a) for which the defendant contacted the
minor; or minor; or
a felony of the third degree; whichever is greater. a felony of the third degree; whichever is greater.
If the offense constitutes a felony of the third degree, in accordance with 18 Pa. If the offense constitutes a felony of the third degree, in accordance with 18 Pa.
Cons. Stat. Ann. 1103, the maximum incarceration sentence is up to 7 years, Cons. Stat. Ann. 1103, the maximum incarceration sentence is up to 7 years,
$15,000.00. $15,000.00.
If the underlying offense is greater than a felony of the third degree, see Chapter If the underlying offense is greater than a felony of the third degree, see Chapter
9, Section 9.8(B) Statutory Penalties for Crimes of Sexual Violence for the 9, Section 9.8(B) Statutory Penalties for Crimes of Sexual Violence for the
penalties. penalties.
D. Concurrent Jurisdiction to Prosecute D. Concurrent Jurisdiction to Prosecute
The Attorney General has concurrent prosecutorial jurisdiction with the county The Attorney General has concurrent prosecutorial jurisdiction with the county
district attorney for violations under this section and any crime arising out of the district attorney for violations under this section and any crime arising out of the
activity prohibited by this section when the person charged with a violation of activity prohibited by this section when the person charged with a violation of
this section contacts a minor through the use of a computer, computer system or this section contacts a minor through the use of a computer, computer system or
computer network. 18 Pa.Cons.Stat.Ann. 6318(b.1). computer network. 18 Pa.Cons.Stat.Ann. 6318(b.1).
E. Definitions E. Definitions
As used in this section, the following words and phrases shall have the meanings As used in this section, the following words and phrases shall have the meanings
given to them in this subsection: given to them in this subsection:
12 A person is guilty of prostitution if he or she: (1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a 12 A person is guilty of prostitution if he or she: (1) is an inmate of a house of prostitution or otherwise engages in sexual activity as a
business; or (2) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity. 18 Pa.Cons. business; or (2) loiters in or within view of any public place for the purpose of being hired to engage in sexual activity. 18 Pa.Cons.
stat.ann. 5902. stat.ann. 5902.
13 See Section 4.9 OBSCENE and OTHER SEXUAL MATERIAL and PERFORMANCES, which examines 18 Pa.Cons.stat.ann. 13 See Section 4.9 OBSCENE and OTHER SEXUAL MATERIAL and PERFORMANCES, which examines 18 Pa.Cons.stat.ann.
5903, infra. 5903, infra.
14 See Section 4.5, SEXUAL ABUSE OF CHILDREN, supra. 14 See Section 4.5, SEXUAL ABUSE OF CHILDREN, supra.
15 See Section 4.7, SEXUAL EXPLOITATION OF CHILDREN, infra. 15 See Section 4.7, SEXUAL EXPLOITATION OF CHILDREN, infra.
Computer. An electronic, magnetic, optical, hydraulic, organic or other high- Computer. An electronic, magnetic, optical, hydraulic, organic or other high-
speed data processing device or system which performs logic, arithmetic or speed data processing device or system which performs logic, arithmetic or
memory functions and includes all input, output, processing, storage, software memory functions and includes all input, output, processing, storage, software
or communication facilities which are connected or related to the device in a or communication facilities which are connected or related to the device in a
computer system or computer network. computer system or computer network.
Computer network. The interconnection of two or more computers through Computer network. The interconnection of two or more computers through
the usage of satellite, microwave, line or other communication medium. the usage of satellite, microwave, line or other communication medium.
Computer system. A set of related, connected or unconnected computer Computer system. A set of related, connected or unconnected computer
equipment, devices and software. equipment, devices and software.
Contacts. Direct or indirect contact or communication by any means, Contacts. Direct or indirect contact or communication by any means,
method or device, including contact or communication in person or through method or device, including contact or communication in person or through
an agent or agency, through any print medium, the mails, a common carrier or an agent or agency, through any print medium, the mails, a common carrier or
communication common carrier, any electronic communication system and any communication common carrier, any electronic communication system and any
telecommunications, wire, computer or radio communications device or system. telecommunications, wire, computer or radio communications device or system.
Minor. An individual under 18 years of age. Minor. An individual under 18 years of age.
F. Sex Offender Registration F. Sex Offender Registration
The crime of Unlawful Contact with a Minor under Sexual Abuse of Children The crime of Unlawful Contact with a Minor under Sexual Abuse of Children
under 18 Pa.Cons.Stat.Ann. 6318 is a Tier II Sexual Offense under 42 Pa.Cons. under 18 Pa.Cons.Stat.Ann. 6318 is a Tier II Sexual Offense under 42 Pa.Cons.
Stat.Ann. 9799.14. A Tier II sexual offense requires registration with the Stat.Ann. 9799.14. A Tier II sexual offense requires registration with the
Pennsylvania State Police for a period of 25 years.16 See 42 Pa.Cons.Stat.Ann. Pennsylvania State Police for a period of 25 years.16 See 42 Pa.Cons.Stat.Ann.
9799.15. 9799.15.
4.7 SEXUAL EXPLOITATION OF CHILDREN 4.7 SEXUAL EXPLOITATION OF CHILDREN

The defendant procures for another person The defendant procures for another person
A child under 18 years of age A child under 18 years of age
For the purpose of sexual exploitation For the purpose of sexual exploitation
B. Offense Defined B. Offense Defined
As used in this section, the following words and phrases shall have the meanings As used in this section, the following words and phrases shall have the meanings
given to them in this subsection: given to them in this subsection:
Procure - To obtain or make available for sexual exploitation. Procure - To obtain or make available for sexual exploitation.
Sexual exploitation - Actual or simulated sexual activity or nudity arranged Sexual exploitation - Actual or simulated sexual activity or nudity arranged
for the purpose of sexual stimulation or gratification of any person. for the purpose of sexual stimulation or gratification of any person.
Sexual Exploitation of Children is a felony of the second degree, pursuant to 18 Sexual Exploitation of Children is a felony of the second degree, pursuant to 18
Pa.Cons.Stat.Ann. 6320(b). For a felony of the second degree, in accordance Pa.Cons.Stat.Ann. 6320(b). For a felony of the second degree, in accordance
with 18 Pa. Cons. Stat. Ann. 1103, the maximum incarceration sentence is up with 18 Pa. Cons. Stat. Ann. 1103, the maximum incarceration sentence is up
to ten years, and, in accordance with 18 Pa.Cons.Stat.Ann. 1101, the maximum to ten years, and, in accordance with 18 Pa.Cons.Stat.Ann. 1101, the maximum
fine is up to $25,000.00. fine is up to $25,000.00.
The crime of Sexual Exploitation of Children under 18 Pa.Cons.Stat.Ann. 6320 The crime of Sexual Exploitation of Children under 18 Pa.Cons.Stat.Ann. 6320
is a Tier II Sexual Offense under 42 Pa.Cons.Stat.Ann. 9799.14. A Tier II sexual is a Tier II Sexual Offense under 42 Pa.Cons.Stat.Ann. 9799.14. A Tier II sexual
offense requires registration with the Pennsylvania State Police for a period of 25 offense requires registration with the Pennsylvania State Police for a period of 25
years.17 See 42 Pa.Cons.Stat.Ann. 9799.15. years.17 See 42 Pa.Cons.Stat.Ann. 9799.15.
4.8 INTERNET CHILD PORNOGRAPHY 4.8 INTERNET CHILD PORNOGRAPHY
A. Act Declared Unconstitutional A. Act Declared Unconstitutional
The Internet Child Pornography Act, 18 Pa.Cons.Stat.Ann. 7621 et seq., was The Internet Child Pornography Act, 18 Pa.Cons.Stat.Ann. 7621 et seq., was
enacted to require internet service providers (ISPs) to remove or disable access enacted to require internet service providers (ISPs) to remove or disable access
to child pornography items residing on or accessible through its service in a to child pornography items residing on or accessible through its service in a
manner accessible to persons located within Pennsylvania after notification by manner accessible to persons located within Pennsylvania after notification by
the Pennsylvania Attorney General.18 the Pennsylvania Attorney General.18
This Act was declared unconstitutional in Center for Democracy & Tech. This Act was declared unconstitutional in Center for Democracy & Tech.
vs. Pappert, 337 F. Supp. 2d 606 (E.D. Pa. 2004). The Court held that the Act vs. Pappert, 337 F. Supp. 2d 606 (E.D. Pa. 2004). The Court held that the Act
violated the First Amendment in that the Act could not be implemented without violated the First Amendment in that the Act could not be implemented without
excessive blocking of innocent speech; that the procedures provided by the Act excessive blocking of innocent speech; that the procedures provided by the Act
are insufficient to justify the prior restraint of materials protected by the First are insufficient to justify the prior restraint of materials protected by the First
Amendment; and that it was unconstitutional under the dormant Commerce Amendment; and that it was unconstitutional under the dormant Commerce
Clause because of its affect on interstate commerce. Id., at 611. Clause because of its affect on interstate commerce. Id., at 611.
18 Pursuant to 18 Pa.Cons.stat.ann. 7622, the ISP had to remove or disable access to child pornography items residing on or accessible 18 Pursuant to 18 Pa.Cons.stat.ann. 7622, the ISP had to remove or disable access to child pornography items residing on or accessible
through its service within five business days of notification by the Attorney General. through its service within five business days of notification by the Attorney General.
4.9 OBSCENE MATERIALS 4.9 OBSCENE MATERIALS
Types of Obscene Materials Types of Obscene Materials
Display of Obscene Materials to Minors Display of Obscene Materials to Minors

Manufacture of Obscene Materials in which a Minor is Depicted Manufacture of Obscene Materials in which a Minor is Depicted
Advertisement for Obscene Material in which a Minor is Included Advertisement for Obscene Material in which a Minor is Included
Production of Obscene Performance if a Minor is Included Production of Obscene Performance if a Minor is Included
Dissemination of Explicit Sexual Material to a Minor by Sale or Otherwise Dissemination of Explicit Sexual Material to a Minor by Sale or Otherwise
Admission of Minor to Movie or Other Presentation of Sexual Conduct Admission of Minor to Movie or Other Presentation of Sexual Conduct
Obscenity and pornography have been the subjects of several United States Obscenity and pornography have been the subjects of several United States
Supreme Court opinions, in which the Court has struggled to develop a test that would Supreme Court opinions, in which the Court has struggled to develop a test that would
allow offensive sexual material (obscene material) to be banned while at the same time allow offensive sexual material (obscene material) to be banned while at the same time
recognizing the First Amendment right to freedom of speech (pornography) on sexual recognizing the First Amendment right to freedom of speech (pornography) on sexual
matters. The modern test was set out by the Supreme Court in the 1973 case of Miller v. matters. The modern test was set out by the Supreme Court in the 1973 case of Miller v.
California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).19 California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).19
This section addresses the Pennsylvania statute which criminalizes the This section addresses the Pennsylvania statute which criminalizes the
production and distribution of obscene material but focuses on the sale of obscene production and distribution of obscene material but focuses on the sale of obscene
material to minors, the involvement of minors in the production of obscene material material to minors, the involvement of minors in the production of obscene material
or performances, and child pornography. Section 5903, Obscene and Other Sexual or performances, and child pornography. Section 5903, Obscene and Other Sexual
Materials and Performances, appears in Article F, Offenses Against Public Order and Materials and Performances, appears in Article F, Offenses Against Public Order and
Decency, specifically in Chapter 59, Public Indecency. Decency, specifically in Chapter 59, Public Indecency.
A. Crimes Related to Obscene Materials and Minors A. Crimes Related to Obscene Materials and Minors
1. Display of Obscene Materials to Minors 1. Display of Obscene Materials to Minors
Grading and Penalty: A violation of subsection (a) is a misdemeanor of the Grading and Penalty: A violation of subsection (a) is a misdemeanor of the
first degree. In accordance with 18 Pa.Cons.Stat.Ann. 1101, the maximum first degree. In accordance with 18 Pa.Cons.Stat.Ann. 1101, the maximum
19 For further discussion, see 61 Am. Jur. Proof of Facts 3d 51 (2014 supplement). 19 For further discussion, see 61 Am. Jur. Proof of Facts 3d 51 (2014 supplement).
fine for a misdemeanor of the first degree is up to $10,000, and the maximum fine for a misdemeanor of the first degree is up to $10,000, and the maximum
incarceration sentence, 18 Pa.Cons.Stat.Ann. 1104, is up to 5 years in prison. incarceration sentence, 18 Pa.Cons.Stat.Ann. 1104, is up to 5 years in prison.
Enhanced Grading: A violation of subsection (a) is a felony of the third Enhanced Grading: A violation of subsection (a) is a felony of the third
degree if: degree if:
(1) the offender has previously been convicted of a violation of subsection (1) the offender has previously been convicted of a violation of subsection
(a), or (a), or
(2) if the material was sold, distributed, prepared or published for the purpose (2) if the material was sold, distributed, prepared or published for the purpose
of resale. of resale.
In accordance with 18 Pa.Cons.Stat.Ann. 1101, the maximum fine for a In accordance with 18 Pa.Cons.Stat.Ann. 1101, the maximum fine for a
felony of the third degree is up to $15,000, and the maximum incarceration felony of the third degree is up to $15,000, and the maximum incarceration
sentence, 18 Pa.Cons.Stat.Ann. 1103, is up to 7 years in prison. sentence, 18 Pa.Cons.Stat.Ann. 1103, is up to 7 years in prison.
2. Manufacture of Obscene Materials in which a Minor is Depicted 2. Manufacture of Obscene Materials in which a Minor is Depicted
18 Pa.Cons.Stat.Ann. 5903(a)(3)(ii). 18 Pa.Cons.Stat.Ann. 5903(a)(3)(ii).
(a), or (a), or
3. Advertisement for Obscene Materials in which a Minor is Included 3. Advertisement for Obscene Materials in which a Minor is Included
18 Pa.Cons.Stat.Ann. 5903(a)(4)(ii). 18 Pa.Cons.Stat.Ann. 5903(a)(4)(ii).
(a), or (a), or
4. Production of Obscene Performance if a Minor is Included 4. Production of Obscene Performance if a Minor is Included
(a), or (a), or
5. Dissemination of Explicit Sexual Material to a Minor by Sale or Otherwise 5. Dissemination of Explicit Sexual Material to a Minor by Sale or Otherwise
Grading and Penalty: A violation of subsection (c) is a felony of the third Grading and Penalty: A violation of subsection (c) is a felony of the third
of the third degree. In accordance with 18 Pa.Cons.Stat.Ann. 1101, the of the third degree. In accordance with 18 Pa.Cons.Stat.Ann. 1101, the
maximum fine for a felony of the third degree is up to $15,000, and the maximum fine for a felony of the third degree is up to $15,000, and the
maximum incarceration sentence, 18 Pa.Cons.Stat.Ann. 1103, is up to 7 maximum incarceration sentence, 18 Pa.Cons.Stat.Ann. 1103, is up to 7
years in prison. years in prison.
Enhanced Grading: A violation of subsection (c) is a felony of the second Enhanced Grading: A violation of subsection (c) is a felony of the second
degree if the offender has previously been convicted of a violation of degree if the offender has previously been convicted of a violation of
subsection (c) or (d). In accordance with 18 Pa.Cons.Stat.Ann. 1101, the subsection (c) or (d). In accordance with 18 Pa.Cons.Stat.Ann. 1101, the
maximum fine for a felony of the second degree is up to $25,000, and the maximum fine for a felony of the second degree is up to $25,000, and the
maximum incarceration sentence, 18 Pa.Cons.Stat.Ann. 1103, is up to 10 maximum incarceration sentence, 18 Pa.Cons.Stat.Ann. 1103, is up to 10
years in prison. years in prison.
(a) Example Computer Images (a) Example Computer Images

In Commonwealth v. Hacker, 959 A.2d 380 (Pa. Super. 2008), reversed In Commonwealth v. Hacker, 959 A.2d 380 (Pa. Super. 2008), reversed
on other grounds, 609 Pa. 108, 15 A.3d 333 (2011), there was sufficient on other grounds, 609 Pa. 108, 15 A.3d 333 (2011), there was sufficient
evidence to support a conviction under this section when the defendant evidence to support a conviction under this section when the defendant
disseminated explicit sexual materials to minors by showing two disseminated explicit sexual materials to minors by showing two
minors, aged twelve and thirteen, several sexually explicit images on a minors, aged twelve and thirteen, several sexually explicit images on a
computer of herself with a man and a woman. computer of herself with a man and a woman.
(b) Example Emailing a Link to Pornographic Site (b) Example Emailing a Link to Pornographic Site
In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), the In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), the
Superior Court affirmed the trial courts decision that sending an Superior Court affirmed the trial courts decision that sending an
email which contained a link to pornographic materials constituted email which contained a link to pornographic materials constituted
the dissemination of explicit sexual materials under 18 Pa.Cons. the dissemination of explicit sexual materials under 18 Pa.Cons.
Stat.Ann. 5903(c). The facts of the case included a stipulation that Stat.Ann. 5903(c). The facts of the case included a stipulation that
Levy emailed a fifteen-year-old girl a link to a pornographic website. Levy emailed a fifteen-year-old girl a link to a pornographic website.
6. Admission of Minor to Movie or Other Presentation of Sexual Conduct 6. Admission of Minor to Movie or Other Presentation of Sexual Conduct
18 Pa.Cons.Stat.Ann. 5903(d). 18 Pa.Cons.Stat.Ann. 5903(d).
Grading: A violation of subsection (d) is a felony of the third of the third Grading: A violation of subsection (d) is a felony of the third of the third
degree. In accordance with 18 Pa.Cons.Stat.Ann. 1101, the maximum fine for degree. In accordance with 18 Pa.Cons.Stat.Ann. 1101, the maximum fine for
a felony of the third degree is up to $15,000, and the maximum incarceration a felony of the third degree is up to $15,000, and the maximum incarceration
Enhanced Grading: A violation of subsection (d) is a felony of the second Enhanced Grading: A violation of subsection (d) is a felony of the second
degree if the offender has previously been convicted of a violation of degree if the offender has previously been convicted of a violation of
subsection (c) or (d). subsection (c) or (d).
B. Definition of Obscene Material and Relevant Provisions B. Definition of Obscene Material and Relevant Provisions
1. Obscene, 18 Pa.Cons.Stat.Ann. 5903(b). 1. Obscene, 18 Pa.Cons.Stat.Ann. 5903(b).
Obscene. Any material or performance, if: Obscene. Any material or performance, if:
(1) the average person applying contemporary community (1) the average person applying contemporary community
standards would find that the subject matter taken as a whole standards would find that the subject matter taken as a whole
appeals to the prurient interest; appeals to the prurient interest;
(2) the subject matter depicts or describes in a patently offensive (2) the subject matter depicts or describes in a patently offensive
way, sexual conduct of a type described in this section; and way, sexual conduct of a type described in this section; and
(3) the subject matter, taken as a whole, lacks serious literary, (3) the subject matter, taken as a whole, lacks serious literary,
artistic, political, educational or scientific value.20 artistic, political, educational or scientific value.20
20 The Pennsylvania statute prohibiting the sale of obscene materials takes the test for obscenity directly from the United States Supreme 20 The Pennsylvania statute prohibiting the sale of obscene materials takes the test for obscenity directly from the United States Supreme
Court decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Our cases have been clear that the obscenity Court decision in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Our cases have been clear that the obscenity
exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of sexual conduct . . . . exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of sexual conduct . . . .
Brown v. Entertainment Merchants Association, --- U.S. ---, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011). Brown v. Entertainment Merchants Association, --- U.S. ---, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011).
2. Material, 18 Pa.Cons.Stat.Ann. 5903(b). 2. Material, 18 Pa.Cons.Stat.Ann. 5903(b).
Material. Any literature, including any book, magazine, Material. Any literature, including any book, magazine,
pamphlet, newspaper, storypaper, bumper sticker, comic book pamphlet, newspaper, storypaper, bumper sticker, comic book
or writing; any figure, visual representation, or image, including or writing; any figure, visual representation, or image, including
any drawing, photograph, picture, videotape or motion picture. any drawing, photograph, picture, videotape or motion picture.
3. Performance, 18 Pa.Cons.Stat.Ann. 5903(b). 3. Performance, 18 Pa.Cons.Stat.Ann. 5903(b).
Performance. Means any play, dance or other live exhibition Performance. Means any play, dance or other live exhibition
performed before an audience. performed before an audience.
4. Sexual Conduct, 18 Pa.Cons.Stat.Ann. 5903(b). 4. Sexual Conduct, 18 Pa.Cons.Stat.Ann. 5903(b).
Sexual conduct. Patently offensive representations or Sexual conduct. Patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, descriptions of ultimate sexual acts, normal or perverted,
actual or simulated, including sexual intercourse, anal or actual or simulated, including sexual intercourse, anal or
oral sodomy and sexual bestiality; and patently offensive oral sodomy and sexual bestiality; and patently offensive
representations or descriptions of masturbation, excretory representations or descriptions of masturbation, excretory
functions, sadomasochistic abuse and lewd exhibition of the functions, sadomasochistic abuse and lewd exhibition of the
genitals. genitals.
C. Initial Trial Court Determination C. Initial Trial Court Determination
Trial Court Must Make Independent Constitutional Judgment on Trial Court Must Make Independent Constitutional Judgment on
Whether Material is Obscene. Whether Material is Obscene.
Because the question of obscenity raises constitutional implications, Because the question of obscenity raises constitutional implications,
the trial court, and the appellate court if there is an appeal, must make an the trial court, and the appellate court if there is an appeal, must make an
independent constitutional judgment on the facts of the case as to whether independent constitutional judgment on the facts of the case as to whether
the material upon which the charges are bases is obscene or constitutionally the material upon which the charges are bases is obscene or constitutionally
protected. Commonwealth v. Lebo, 795 A.2d 987, 991 (2002). The courts are protected. Commonwealth v. Lebo, 795 A.2d 987, 991 (2002). The courts are
not bound by the jurys finding of obscenity because the question [of] whether not bound by the jurys finding of obscenity because the question [of] whether
a particular work is obscene necessarily entails a subtle issue of constitutional a particular work is obscene necessarily entails a subtle issue of constitutional
law. Id., citing Commonwealtlh v. Baer, 227 A.2d 915, 917 (Pa. Super. 1967), law. Id., citing Commonwealtlh v. Baer, 227 A.2d 915, 917 (Pa. Super. 1967),
affm, 436 Pa. 18, 257 A.2d 254 (1969). Therefore, the trial court must look at all affm, 436 Pa. 18, 257 A.2d 254 (1969). Therefore, the trial court must look at all
of the photographs or films and make such a determination of obscenity in the of the photographs or films and make such a determination of obscenity in the
first instance before submitting the question to the jury. first instance before submitting the question to the jury.
4.10 TRANSMISSION OF SEXUALLY EXPLICIT IMAGES BY MINOR 4.10 TRANSMISSION OF SEXUALLY EXPLICIT IMAGES BY MINOR
This new statute, enacted in 2012, is Pennsylvanias answer to the problems This new statute, enacted in 2012, is Pennsylvanias answer to the problems
surrounding sexting and provides a lesser criminal penalty to teens who send text surrounding sexting and provides a lesser criminal penalty to teens who send text
images of themselves or other minors. This new law permits the prosecutor to charge the images of themselves or other minors. This new law permits the prosecutor to charge the
minor with this lower graded offense instead of under the child pornography statutes, minor with this lower graded offense instead of under the child pornography statutes,
i.e., Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312. This law makes it a crime, i.e., Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312. This law makes it a crime,
graded as a summary offense if the image is of a minor age 12 years or older; when a graded as a summary offense if the image is of a minor age 12 years or older; when a
minor possesses or views a sexually explicit photograph of himself/herself; or possesses minor possesses or views a sexually explicit photograph of himself/herself; or possesses
a sexually explicit picture of another minor. a sexually explicit picture of another minor.
The new law raises the grading if the minor transmits the image to others, or if The new law raises the grading if the minor transmits the image to others, or if
the image is created without the knowledge of the depicted minor. the image is created without the knowledge of the depicted minor.
A. Summary Offense A. Summary Offense
18 Pa.Cons.Stat.Ann. 6321 (a). 18 Pa.Cons.Stat.Ann. 6321 (a).

A minor knowingly transmits, distributes, publishes or disseminates A minor knowingly transmits, distributes, publishes or disseminates
An electronic communication containing a sexually explicit image of himself/ An electronic communication containing a sexually explicit image of himself/
herself. herself.
Or Or
A minor knowingly possesses or knowingly views A minor knowingly possesses or knowingly views
A sexually explicit image of a minor who is 12 years of age or older. A sexually explicit image of a minor who is 12 years of age or older.
When the offense does not specify a higher fine, a summary carries a fine of When the offense does not specify a higher fine, a summary carries a fine of
$300, 18 Pa.Cons.Stat.Ann. 1101, and a sentence of imprisonment for up to a $300, 18 Pa.Cons.Stat.Ann. 1101, and a sentence of imprisonment for up to a
maximum of 90 days, 18 Pa.Cons.Stat.Ann. 1105. maximum of 90 days, 18 Pa.Cons.Stat.Ann. 1105.
B. Misdemeanor of the Third Degree. B. Misdemeanor of the Third Degree.
18 Pa.Cons.Stat.Ann. 6321 (b). 18 Pa.Cons.Stat.Ann. 6321 (b).

A minor knowingly transmits, distributes, publishes or disseminates A minor knowingly transmits, distributes, publishes or disseminates
An electronic communication containing a sexually explicit image of another An electronic communication containing a sexually explicit image of another
minor who is 12 years of age or older. minor who is 12 years of age or older.
misdemeanor of the third degree is up to $2,500, and the maximum incarceration misdemeanor of the third degree is up to $2,500, and the maximum incarceration
sentence, 18 Pa.Cons.Stat.Ann. 1104, is up to one year in prison. sentence, 18 Pa.Cons.Stat.Ann. 1104, is up to one year in prison.
C. Misdemeanor of the Second Degree C. Misdemeanor of the Second Degree
18 Pa.Cons.Stat.Ann. 6321 (b). 18 Pa.Cons.Stat.Ann. 6321 (b).

A minor, with the intent to coerce, intimidate, torment, harass or otherwise A minor, with the intent to coerce, intimidate, torment, harass or otherwise
cause emotional distress to another minor cause emotional distress to another minor
Makes a visual depiction of any minor in a state of nudity Makes a visual depiction of any minor in a state of nudity
Without the knowledge and consent of the depicted minor Without the knowledge and consent of the depicted minor
Or Or
knowingly transmits, distributes, publishes or disseminates knowingly transmits, distributes, publishes or disseminates
A visual depiction of any minor in a state of nudity A visual depiction of any minor in a state of nudity
Without the knowledge and consent of the depicted minor. Without the knowledge and consent of the depicted minor.
misdemeanor of the second degree is up to $5,000, and the maximum incarceration misdemeanor of the second degree is up to $5,000, and the maximum incarceration
sentence, 18 Pa.Cons.Stat.Ann. 1104, is up to two years in prison. sentence, 18 Pa.Cons.Stat.Ann. 1104, is up to two years in prison.
D. Exceptions D. Exceptions
In accordance with 18 Pa.Cons.Stat.Ann. 6321(d), this statute does not apply In accordance with 18 Pa.Cons.Stat.Ann. 6321(d), this statute does not apply
to the following situations: to the following situations:
(d) Application of section.--This section shall not apply to (d) Application of section.--This section shall not apply to
the following: the following:
(1) Conduct that involves images that depict sexual (1) Conduct that involves images that depict sexual
intercourse, deviate sexual intercourse or penetration, intercourse, deviate sexual intercourse or penetration,
however slight, of the genitals or anus of a minor, however slight, of the genitals or anus of a minor,
masturbation, sadism, masochism or bestiality. masturbation, sadism, masochism or bestiality.
(2) Conduct that involves a sexually explicit image of a (2) Conduct that involves a sexually explicit image of a
minor if the image was taken, made, used or intended to be minor if the image was taken, made, used or intended to be
used for or in furtherance of a commercial purpose. used for or in furtherance of a commercial purpose.
E. Definitions E. Definitions
Pertinent definitions are included in Section 6321(g): Pertinent definitions are included in Section 6321(g):
Disseminate. To cause or make an electronic or actual Disseminate. To cause or make an electronic or actual
communication from one person, place or electronic communication from one person, place or electronic
communication device to two or more other persons, places communication device to two or more other persons, places
or electronic communication devices. or electronic communication devices.
Distribute. To deliver or pass out. Distribute. To deliver or pass out.
Electronic communication. As defined in section 5702 Electronic communication. As defined in section 5702
(relating to definitions). (relating to definitions).
Knowingly possesses. The deliberate, purposeful, Knowingly possesses. The deliberate, purposeful,
voluntary possession of a sexually explicit image of another voluntary possession of a sexually explicit image of another
minor who is 12 years of age or older. The term shall not minor who is 12 years of age or older. The term shall not
include the accidental or inadvertent possession of such an include the accidental or inadvertent possession of such an
image. image.
Knowingly views. The deliberate, purposeful, voluntary Knowingly views. The deliberate, purposeful, voluntary
viewing of a sexually explicit image of another minor who viewing of a sexually explicit image of another minor who
is 12 years of age or older. The term shall not include the is 12 years of age or older. The term shall not include the
accidental or inadvertent viewing of such an image. accidental or inadvertent viewing of such an image.
Minor. An individual under 18 years of age. Minor. An individual under 18 years of age.
Nudity. The showing of the human male or female Nudity. The showing of the human male or female
genitals, pubic area or buttocks with less than a fully opaque genitals, pubic area or buttocks with less than a fully opaque
covering, the showing of the female breast with less than a covering, the showing of the female breast with less than a
fully opaque covering of any portion thereof below the top fully opaque covering of any portion thereof below the top
of the nipple or the depiction of covered male genitals in a of the nipple or the depiction of covered male genitals in a
discernibly turgid state. discernibly turgid state.
Publish. To issue for distribution. Publish. To issue for distribution.
Sexually explicit image. A lewd or lascivious visual Sexually explicit image. A lewd or lascivious visual
depiction of a minors genitals, pubic area, breast or buttocks depiction of a minors genitals, pubic area, breast or buttocks
or nudity, if such nudity is depicted for the purpose of sexual or nudity, if such nudity is depicted for the purpose of sexual
stimulation or gratification of any person who might view stimulation or gratification of any person who might view
such nudity. such nudity.
Transmit. To cause or make an electronic communication Transmit. To cause or make an electronic communication
from one person, place or electronic communication device from one person, place or electronic communication device
to only one other person, place or electronic communication to only one other person, place or electronic communication
device. device.
Visual depiction. A representation by picture, including, Visual depiction. A representation by picture, including,
but not limited to, a photograph, videotape, film or computer but not limited to, a photograph, videotape, film or computer
image. image.
18 Pa.Cons.Stat.Ann. 6321(g). 18 Pa.Cons.Stat.Ann. 6321(g).
4.11 SEXUAL ASSAULT BY SPORTS OFFICIAL, VOLUNTEER OR EMPLOYEE 4.11 SEXUAL ASSAULT BY SPORTS OFFICIAL, VOLUNTEER OR EMPLOYEE
OF NONPROFIT ASSOCIATION OF NONPROFIT ASSOCIATION
Sexual Assault by a Sports Offficial Sexual Assault by a Sports Offficial

Sexual Assault by Volunteer or Employee of Nonprofit Association Sexual Assault by Volunteer or Employee of Nonprofit Association
A. Sexual Assault by a Sports Official A. Sexual Assault by a Sports Official

The defendant is a person who serves as a sports official in a sports The defendant is a person who serves as a sports official in a sports
program program
Of a nonprofit association or a for-profit association Of a nonprofit association or a for-profit association
Engages in sexual intercourse, deviate sexual intercourse or indecent Engages in sexual intercourse, deviate sexual intercourse or indecent
contact contact
With a child under 18 years of age With a child under 18 years of age
Who is participating in a sports program of the nonprofit Who is participating in a sports program of the nonprofit
association or for-profit association association or for-profit association
2. Exceptions Except as provided in sections 18 Pa.Cons.Stat.Ann. 2. Exceptions Except as provided in sections 18 Pa.Cons.Stat.Ann.
3121, 3122.1, 3123, 3124.1 and 3125 (rape, statutory sexual assault, IDSI, 3121, 3122.1, 3123, 3124.1 and 3125 (rape, statutory sexual assault, IDSI,
sexual assault and aggravated indecent assault). sexual assault and aggravated indecent assault).
3. Grading and Penalty A violation of this subsection is a felony of the third 3. Grading and Penalty A violation of this subsection is a felony of the third
incarceration sentence is up to seven years, and, in accordance with 18 incarceration sentence is up to seven years, and, in accordance with 18
Pa.Cons.Stat.Ann. 1101, the maximum fine is $15,000.00. Pa.Cons.Stat.Ann. 1101, the maximum fine is $15,000.00.
4. Definition of sports official: A person who supervises children 4. Definition of sports official: A person who supervises children
participating in a sorts program including, but not limited to: a coach, participating in a sorts program including, but not limited to: a coach,
assistant coach, athletic trainer, team attendant, game manager, instructor assistant coach, athletic trainer, team attendant, game manager, instructor
or a person who enforces the rules of a sporting event such as an umpire or a person who enforces the rules of a sporting event such as an umpire
or referee. or referee.
B. Volunteer or Employee of Nonprofit Association B. Volunteer or Employee of Nonprofit Association

The defendant is a volunteer or an employee of a nonprofit association The defendant is a volunteer or an employee of a nonprofit association
having direct contact with a child under 18 years of age having direct contact with a child under 18 years of age
The child participates in a program or activity of the nonprofit association The child participates in a program or activity of the nonprofit association
or indecent contact or indecent contact
With that child. With that child.
2. Exceptions Except as provided in sections 18 Pa.Cons.Stat.Ann. 2. Exceptions Except as provided in sections 18 Pa.Cons.Stat.Ann.
3121, 3122.1, 3123, 3124.1 and 3125 (rape, statutory sexual assault, IDSI, 3121, 3122.1, 3123, 3124.1 and 3125 (rape, statutory sexual assault, IDSI,
sexual assault and aggravated indecent assault). sexual assault and aggravated indecent assault).
3. Grading and Penalty A violation of this subsection is a felony of the third 3. Grading and Penalty A violation of this subsection is a felony of the third
incarceration sentence is up to seven years, and, in accordance with 18 incarceration sentence is up to seven years, and, in accordance with 18
Pa.Cons.Stat.Ann. 1101, the maximum fine is $15,000.00. Pa.Cons.Stat.Ann. 1101, the maximum fine is $15,000.00.
4. Definition of Direct Contact: Care, supervision, guidance or control. 4. Definition of Direct Contact: Care, supervision, guidance or control.
4.12 CRIMINAL ATTEMPT, CONSPIRACY OR SOLICITATION 4.12 CRIMINAL ATTEMPT, CONSPIRACY OR SOLICITATION
A. Statutory Citations A. Statutory Citations
18 Pa.Cons.Stat.Ann. 901 (Criminal Attempt), 902 (Criminal Solicitation) and 18 Pa.Cons.Stat.Ann. 901 (Criminal Attempt), 902 (Criminal Solicitation) and
903 (Criminal Conspiracy). 903 (Criminal Conspiracy).
B. Definition of Inchoate Offenses B. Definition of Inchoate Offenses
18 Pa.Cons.Stat.Ann. 901. Criminal attempt 18 Pa.Cons.Stat.Ann. 901. Criminal attempt
(a) Definition of attempt.--A person commits an attempt (a) Definition of attempt.--A person commits an attempt
when, with intent to commit a specific crime, he does when, with intent to commit a specific crime, he does
any act which constitutes a substantial step toward the any act which constitutes a substantial step toward the
commission of that crime. commission of that crime.
18 Pa.Cons.Stat.Ann. 902. Criminal Solicitation 18 Pa.Cons.Stat.Ann. 902. Criminal Solicitation
(a) Definition of solicitation. A person is guilty of (a) Definition of solicitation. A person is guilty of
solicitation to commit a crime if with the intent of promoting solicitation to commit a crime if with the intent of promoting
or facilitating its commission he commands, encourages or facilitating its commission he commands, encourages
or requests another person to engage in specific conduct or requests another person to engage in specific conduct
which would constitute such crime or an attempt to commit which would constitute such crime or an attempt to commit
such crime or which would establish his complicity in its such crime or which would establish his complicity in its
commission or attempted commission. commission or attempted commission.
18 Pa.Cons.Stat.Ann. 903. Criminal conspiracy 18 Pa.Cons.Stat.Ann. 903. Criminal conspiracy
(a) Definition of conspiracy.--A person is guilty of (a) Definition of conspiracy.--A person is guilty of
conspiracy with another person or persons to commit conspiracy with another person or persons to commit
a crime if with the intent of promoting or facilitating its a crime if with the intent of promoting or facilitating its
commission he: commission he:
(1) agrees with such other person or persons that they (1) agrees with such other person or persons that they
or one or more of them will engage in conduct which or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to constitutes such crime or an attempt or solicitation to
commit such crime; or commit such crime; or
(2) agrees to aid such other person or persons in the (2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt planning or commission of such crime or of an attempt
or solicitation to commit such crime. or solicitation to commit such crime.
(b) Scope of conspiratorial relationship.--If a person (b) Scope of conspiratorial relationship.--If a person
guilty of conspiracy, as defined by subsection (a) of this guilty of conspiracy, as defined by subsection (a) of this
section, knows that a person with whom he conspires section, knows that a person with whom he conspires
to commit a crime has conspired with another person to commit a crime has conspired with another person
or persons to commit the same crime, he is guilty of or persons to commit the same crime, he is guilty of
conspiring with such other person or persons, to commit conspiring with such other person or persons, to commit
such crime whether or not he knows their identity. such crime whether or not he knows their identity.
(c) Conspiracy with multiple criminal objectives.--If (c) Conspiracy with multiple criminal objectives.--If
a person conspires to commit a number of crimes, he a person conspires to commit a number of crimes, he
is guilty of only one conspiracy so long as such multiple is guilty of only one conspiracy so long as such multiple
crimes are the object of the same agreement or continuous crimes are the object of the same agreement or continuous
conspiratorial relationship. conspiratorial relationship.
1. Grading and Penalties 1. Grading and Penalties
18 Pa.Cons.Stat.Ann. 905(a) provides that inchoate crimes have the same 18 Pa.Cons.Stat.Ann. 905(a) provides that inchoate crimes have the same
grade and degree as the most serious offense which is attempted or solicited or grade and degree as the most serious offense which is attempted or solicited or
is an object of the conspiracy (unless otherwise provided in the Pennsylvania is an object of the conspiracy (unless otherwise provided in the Pennsylvania
Crimes and Offenses Code). See also, Commonwealth v. Hoke, 599 Pa. 587, Crimes and Offenses Code). See also, Commonwealth v. Hoke, 599 Pa. 587,
593-594, 962 A.2d 664, 668 (2009).21 593-594, 962 A.2d 664, 668 (2009).21
2. Dismissal of Charge 2. Dismissal of Charge
18 Pa.Cons.Stat.Ann. 905(b) provides that if the particular conduct charged 18 Pa.Cons.Stat.Ann. 905(b) provides that if the particular conduct charged
to constitute the inchoate crime is so inherently unlikely to result or culminate to constitute the inchoate crime is so inherently unlikely to result or culminate
in the commission of a crime that neither such conduct nor the actor presents in the commission of a crime that neither such conduct nor the actor presents
a public danger warranting the grading of such offense under this section, the a public danger warranting the grading of such offense under this section, the
21 See Chapter 9, Section 9.8(B) Statutory Penalties for Crimes of Sexual Violence for the specific penalties. 21 See Chapter 9, Section 9.8(B) Statutory Penalties for Crimes of Sexual Violence for the specific penalties.
court may dismiss the prosecution. court may dismiss the prosecution.
The inchoate crimes under 18 Pa.Cons.Stat.Ann. 901, 902 & 903 are listed The inchoate crimes under 18 Pa.Cons.Stat.Ann. 901, 902 & 903 are listed
in 42 Pa.Cons.Stat.Ann. 9799.14 and are in the Tier for which the underlying in 42 Pa.Cons.Stat.Ann. 9799.14 and are in the Tier for which the underlying
crime is listed. crime is listed.
E. Solicitation of a Minor E. Solicitation of a Minor
A defendant may be convicted of solicitation where the person approached A defendant may be convicted of solicitation where the person approached
would be the victim of a crime and not an accomplice. Commonwealth v. Cauto, would be the victim of a crime and not an accomplice. Commonwealth v. Cauto,
535 A.2d 602 (Pa. Super. 1987), appeal denied, 521 Pa. 601, 555 A.2d 112 (1988) 535 A.2d 602 (Pa. Super. 1987), appeal denied, 521 Pa. 601, 555 A.2d 112 (1988)
(offering to perform oral sex on one minor and requesting another minor to pose (offering to perform oral sex on one minor and requesting another minor to pose
in photographs depicting masturbation and oral sex with another male constitutes in photographs depicting masturbation and oral sex with another male constitutes
complicity or participation in the commission of a crime, to wit: Involuntary complicity or participation in the commission of a crime, to wit: Involuntary
Deviate Sexual Intercourse and Sexual Abuse of Children by Photograph or Film); Deviate Sexual Intercourse and Sexual Abuse of Children by Photograph or Film);
Commonwealth v. Morales, 601 A.2d 1263 (Pa. Super. 1992), appeal denied, 531 Commonwealth v. Morales, 601 A.2d 1263 (Pa. Super. 1992), appeal denied, 531
Pa. 652, 613 A.2d 558 (1992)(offering to perform oral sex on a minor is sufficient Pa. 652, 613 A.2d 558 (1992)(offering to perform oral sex on a minor is sufficient
for a solicitation conviction since the solicitation was for the victims participation for a solicitation conviction since the solicitation was for the victims participation
in conduct, without which the defendant could not have committed involuntary in conduct, without which the defendant could not have committed involuntary
deviate sexual intercourse.) deviate sexual intercourse.)
Chapter 5 Chapter 5
DEFENSES DEFENSES
Defenses Defenses
Chapter Five Table of Contents Chapter Five Table of Contents

Defenses Defenses
5.2 ALIBI DEFENSE...................................................................................................... 5 5.2 ALIBI DEFENSE...................................................................................................... 5
A. Definition .............................................................................................................................. 5 A. Definition .............................................................................................................................. 5
B. Establishing the Defense ................................................................................................ 5 B. Establishing the Defense ................................................................................................ 5
1. Evidence which isolates the defendant from the crime scene ................ 5 1. Evidence which isolates the defendant from the crime scene ................ 5
2. No corroboration needed ........................................................................................ 5 2. No corroboration needed ........................................................................................ 5
3. Defense counsel has duty to investigate alibi witnesses ........................... 6 3. Defense counsel has duty to investigate alibi witnesses ........................... 6
C. Statutory Notice Requirements ................................................................................... 6 C. Statutory Notice Requirements ................................................................................... 6
1. Notice requirement by defense ............................................................................ 6 1. Notice requirement by defense ............................................................................ 6
2. Notice requirement by prosecution.................................................................... 7 2. Notice requirement by prosecution.................................................................... 7
3. Continuing duty to disclose .................................................................................... 8 3. Continuing duty to disclose .................................................................................... 8
4. Impeachment of defendants alibi defense ...................................................... 8 4. Impeachment of defendants alibi defense ...................................................... 8
5. Withdrawal of alibi notice....................................................................................... 8 5. Withdrawal of alibi notice....................................................................................... 8
D. Burden of Proof .................................................................................................................. 8 D. Burden of Proof .................................................................................................................. 8
E. Alibi Jury Instruction........................................................................................................ 9 E. Alibi Jury Instruction........................................................................................................ 9
1. Purpose of instruction .............................................................................................. 9 1. Purpose of instruction .............................................................................................. 9
2. Necessity of instruction .........................................................................................10 2. Necessity of instruction .........................................................................................10
3. Limitation on use of instruction .........................................................................10 3. Limitation on use of instruction .........................................................................10
4. Ineffective assistance of counsel: lack of request for instruction ........11 4. Ineffective assistance of counsel: lack of request for instruction ........11
F. Rebuttal of Alibi Defense ..............................................................................................12 F. Rebuttal of Alibi Defense ..............................................................................................12
G. Assessing the Credibility of an Alibi Witness ......................................................13 G. Assessing the Credibility of an Alibi Witness ......................................................13
5.3 CONSENT DEFENSE ............................................................................................13 5.3 CONSENT DEFENSE ............................................................................................13
A. Statutory Elements of Defense...................................................................................13 A. Statutory Elements of Defense...................................................................................13
B. Burden of Proof ................................................................................................................14 B. Burden of Proof ................................................................................................................14
C. Ineffective Consent..........................................................................................................15 C. Ineffective Consent..........................................................................................................15
D. Consent as a Valid Defense ..........................................................................................16 D. Consent as a Valid Defense ..........................................................................................16
E. Consent Inapplicable to Certain Sexual Offenses ...............................................16 E. Consent Inapplicable to Certain Sexual Offenses ...............................................16
1. Victims younger than thirteen years old ........................................................16 1. Victims younger than thirteen years old ........................................................16
2. Victims thirteen and older but under sixteen years old ..........................17 2. Victims thirteen and older but under sixteen years old ..........................17
3. Statutory Sexual Assault ........................................................................................17 3. Statutory Sexual Assault ........................................................................................17
5.4 DURESS ..........................................................................................................18 5.4 DURESS ..........................................................................................................18
A. Statutory Elements .........................................................................................................18 A. Statutory Elements .........................................................................................................18
Defenses Defenses
B. Degree of Force Required .............................................................................................18 B. Degree of Force Required .............................................................................................18

C. Exceptions to Duress Defense ....................................................................................19 C. Exceptions to Duress Defense ....................................................................................19
1. Recklessness ...............................................................................................................19 1. Recklessness ...............................................................................................................19
2. Negligence....................................................................................................................20 2. Negligence....................................................................................................................20
5.5 IMPEACHMENT WITH PRIOR SEXUAL CONDUCT ....................................21 5.5 IMPEACHMENT WITH PRIOR SEXUAL CONDUCT ....................................21
A. Pennsylvanias Rape Shield Statute..........................................................................21 A. Pennsylvanias Rape Shield Statute..........................................................................21
B. Confrontation Clause Challenges ..............................................................................23 B. Confrontation Clause Challenges ..............................................................................23
C. Impeachment Based Upon Prior False Accusations .........................................24 C. Impeachment Based Upon Prior False Accusations .........................................24
5.6 IMPOSSIBILITY DEFENSE ................................................................................26 5.6 IMPOSSIBILITY DEFENSE ................................................................................26
A. Abrogation ..........................................................................................................................26 A. Abrogation ..........................................................................................................................26
B. Factual Impossibility ......................................................................................................26 B. Factual Impossibility ......................................................................................................26
C. Impotence or Other Type of Inability .....................................................................26 C. Impotence or Other Type of Inability .....................................................................26
D. Legal Impossibility ..........................................................................................................27 D. Legal Impossibility ..........................................................................................................27
5.7 INSANITY DEFENSE ...........................................................................................27 5.7 INSANITY DEFENSE ...........................................................................................27
A. Availability ..........................................................................................................................27 A. Availability ..........................................................................................................................27
C. MNaghten Test .................................................................................................................29 C. MNaghten Test .................................................................................................................29
D. Irresistible Impulse.........................................................................................................29 D. Irresistible Impulse.........................................................................................................29
E Diminished Capacity ......................................................................................................30 E Diminished Capacity ......................................................................................................30
F. Guilty But Mentally Ill ....................................................................................................30 F. Guilty But Mentally Ill ....................................................................................................30
1. General rule at trial ..................................................................................................30 1. General rule at trial ..................................................................................................30
2. Guilty Plea ....................................................................................................................32 2. Guilty Plea ....................................................................................................................32
3. Sentencing....................................................................................................................32 3. Sentencing....................................................................................................................32
5.8 INTOXICATION ....................................................................................................33 5.8 INTOXICATION ....................................................................................................33
A. Voluntary Intoxication ...................................................................................................34 A. Voluntary Intoxication ...................................................................................................34
B. Involuntary Intoxication ...............................................................................................34 B. Involuntary Intoxication ...............................................................................................34
5.9 MISTAKE OF FACT...............................................................................................36 5.9 MISTAKE OF FACT...............................................................................................36
A. Statutory Elements of Defense...................................................................................36 A. Statutory Elements of Defense...................................................................................36
C. Applicability to Sex Offenses Mistake as to Consent .....................................36 C. Applicability to Sex Offenses Mistake as to Consent .....................................36
D. Applicability to Sex Offenses - Mistake as to Age ...............................................37 D. Applicability to Sex Offenses - Mistake as to Age ...............................................37
E. No Conflict between Sections 3102 and 304 of the Crimes Code ...............38 E. No Conflict between Sections 3102 and 304 of the Crimes Code ...............38
5.10 MISTAKE OF LAW ...............................................................................................39 5.10 MISTAKE OF LAW ...............................................................................................39
5.11 STATUTE OF LIMITATIONS ..............................................................................39 5.11 STATUTE OF LIMITATIONS ..............................................................................39
A. Raising the Defense of the Statute of Limitations ..............................................39 A. Raising the Defense of the Statute of Limitations ..............................................39
1. Pretrial motion...........................................................................................................39 1. Pretrial motion...........................................................................................................39
Defenses Defenses
2. Standard of review ...................................................................................................40 2. Standard of review ...................................................................................................40

B. Particular Sexual Violence Offenses ........................................................................40 B. Particular Sexual Violence Offenses ........................................................................40
C. Minority Tolling Provision ...........................................................................................41 C. Minority Tolling Provision ...........................................................................................41
1. Extended statute of limitations ..........................................................................41 1. Extended statute of limitations ..........................................................................41
2. Application of extended statute .........................................................................41 2. Application of extended statute .........................................................................41
D. Tolling of the Statute of Limitations ........................................................................42 D. Tolling of the Statute of Limitations ........................................................................42
E. Commission of Offense ..................................................................................................43 E. Commission of Offense ..................................................................................................43
F. Commencement of Limitations Period...................................................................43 F. Commencement of Limitations Period...................................................................43
1. Date of alleged offense............................................................................................43 1. Date of alleged offense............................................................................................43
2. Permissible leeway ..................................................................................................43 2. Permissible leeway ..................................................................................................43
G. Commencement of Prosecution ................................................................................44 G. Commencement of Prosecution ................................................................................44
1. Due Process argument............................................................................................44 1. Due Process argument............................................................................................44
H. Commencement of Prosecution: Invasion of Privacy.......................................44 H. Commencement of Prosecution: Invasion of Privacy.......................................44
5.12 DUE PROCESS CLAIM OF PRE-ARREST DELAY ..........................................45 5.12 DUE PROCESS CLAIM OF PRE-ARREST DELAY ..........................................45
5.13 TAINT .......... ..........................................................................................................46 5.13 TAINT .......... ..........................................................................................................46
A. The Taint Hearing ............................................................................................................47 A. The Taint Hearing ............................................................................................................47
Defenses Defenses
Chapter Five Chapter Five

Defenses Defenses
This chapter examines defenses applicable to defendants accused of sexual This chapter examines defenses applicable to defendants accused of sexual
violence offenses and related offenses. The defenses are arranged alphabetically by title violence offenses and related offenses. The defenses are arranged alphabetically by title
and each defense includes a detailed discussion on applicability, elements, and burden and each defense includes a detailed discussion on applicability, elements, and burden
of proof, along with other relevant issues. of proof, along with other relevant issues.
A proper starting point is the foundation of protection provided to an accused in A proper starting point is the foundation of protection provided to an accused in
a criminal case, long recognized in Pennsylvania. Article I, Section 9 of the Pennsylvania a criminal case, long recognized in Pennsylvania. Article I, Section 9 of the Pennsylvania
Constitution provides: Constitution provides:
Section 9 Rights of accused in criminal prosecutions Section 9 Rights of accused in criminal prosecutions
In all criminal prosecutions the accused hath a right to In all criminal prosecutions the accused hath a right to
be heard by himself and his counsel, to demand the nature be heard by himself and his counsel, to demand the nature
and cause of the accusation against him, to be confronted and cause of the accusation against him, to be confronted
with the witnesses against him, to have compulsory process with the witnesses against him, to have compulsory process
for obtaining witnesses in his favor, and, in prosecutions by for obtaining witnesses in his favor, and, in prosecutions by
indictment or information, a speedy public trial by an impartial indictment or information, a speedy public trial by an impartial
jury of the vicinage; he cannot be compelled to give evidence jury of the vicinage; he cannot be compelled to give evidence
against himself, nor can he be deprived of his life, liberty against himself, nor can he be deprived of his life, liberty
or property, unless by the judgment of his peers or the law or property, unless by the judgment of his peers or the law
of the land. The use of a suppressed voluntary admission or of the land. The use of a suppressed voluntary admission or
voluntary confession to impeach the credibility of a person voluntary confession to impeach the credibility of a person
may be permitted and shall not be construed as compelling a may be permitted and shall not be construed as compelling a
person to give evidence against himself. person to give evidence against himself.
In charging a jury, it is the duty of the trial judge to explain the issues so that the In charging a jury, it is the duty of the trial judge to explain the issues so that the
jurors may comprehend the questions they are to resolve, to clarify principles of law jurors may comprehend the questions they are to resolve, to clarify principles of law
applicable to the case, and to make such principles understandable in plain language. applicable to the case, and to make such principles understandable in plain language.
The failure to fulfill this duty deprives the defendant of a fair trial. Commonwealth v. The failure to fulfill this duty deprives the defendant of a fair trial. Commonwealth v.
Sherlock, 473 A.2d 629, 631 (Pa. Super. 1984). Furthermore, Sherlock, 473 A.2d 629, 631 (Pa. Super. 1984). Furthermore,
Because jury instructions are the principal medium for Because jury instructions are the principal medium for
communicating to the jury the legal bases upon which its verdict communicating to the jury the legal bases upon which its verdict
is to rest, they should be clear, concise, accurate and impartial is to rest, they should be clear, concise, accurate and impartial
statements of the law written in understandable language.... statements of the law written in understandable language....
Commonwealth v. Ford-Bey, 504 Pa. 284, 289, 472 A.2d 1062, Commonwealth v. Ford-Bey, 504 Pa. 284, 289, 472 A.2d 1062,
1064 (1983) (quoting ABA Standards for Criminal Justice 15- 1064 (1983) (quoting ABA Standards for Criminal Justice 15-
3.6(a), Commentary at 100 (citation omitted)). In charging a 3.6(a), Commentary at 100 (citation omitted)). In charging a
jury, the trial judge must clarify issues so that the jurors may jury, the trial judge must clarify issues so that the jurors may
Defenses Defenses
comprehend the questions they are to resolve, elucidate correct comprehend the questions they are to resolve, elucidate correct
principles of law applicable to the pending case, and endeavor to principles of law applicable to the pending case, and endeavor to
make those principles understandable in plain language. make those principles understandable in plain language.
Commonwealth v. Clark, 683 A.2d 901, 904 (Pa. Super. 1996). Commonwealth v. Clark, 683 A.2d 901, 904 (Pa. Super. 1996).
5.2 ALIBI DEFENSE 5.2 ALIBI DEFENSE
A. Definition A. Definition
The long-accepted definition of an alibi is a defense that: The long-accepted definition of an alibi is a defense that:
[P]laces a defendant at the relevant time at a different place than [P]laces a defendant at the relevant time at a different place than
the crime scene and sufficiently removed from that location such the crime scene and sufficiently removed from that location such
that it was impossible for him to be the perpetrator. that it was impossible for him to be the perpetrator.
Commonwealth v. Sileo, 32 A.3d 753, 767 (Pa. Super. 2011), appeal denied, 615 Pa. 785, Commonwealth v. Sileo, 32 A.3d 753, 767 (Pa. Super. 2011), appeal denied, 615 Pa. 785,
42 A.3d 1060 (2012). See also, Blacks Law Dictionary 79 (8th ed. 2004) (A defense 42 A.3d 1060 (2012). See also, Blacks Law Dictionary 79 (8th ed. 2004) (A defense
based on the physical impossibility of a defendants guilt by placing the defendant in a based on the physical impossibility of a defendants guilt by placing the defendant in a
location other than the scene of the crime at the relevant time.). location other than the scene of the crime at the relevant time.).
B. Establishing the Defense B. Establishing the Defense
1. Evidence which isolates the defendant from the crime scene 1. Evidence which isolates the defendant from the crime scene
To successfully assert an alibi defense, a defendant need not show any To successfully assert an alibi defense, a defendant need not show any
minimum or threshold quantum of physical separation from the victim and the minimum or threshold quantum of physical separation from the victim and the
crime scene so long as the separation makes it impossible for the defendant to crime scene so long as the separation makes it impossible for the defendant to
have committed the crime. Commonwealth v. Roxberry, 529 Pa. 160, 164, 602 have committed the crime. Commonwealth v. Roxberry, 529 Pa. 160, 164, 602
A.2d 826, 828 (1992). As the Superior Court recently noted, there is no magic A.2d 826, 828 (1992). As the Superior Court recently noted, there is no magic
distance necessary for the defendants separation from the victim and the crime distance necessary for the defendants separation from the victim and the crime
scene; rather all depends upon whether evidence is introduced that if believed, scene; rather all depends upon whether evidence is introduced that if believed,
isolate[s] [the defendant] from all possible interaction with the victim and the isolate[s] [the defendant] from all possible interaction with the victim and the
crime scene. Commonwealth v. Hall, 867 A.2d 619, 637 (Pa. Super. 2005), crime scene. Commonwealth v. Hall, 867 A.2d 619, 637 (Pa. Super. 2005),
appeal denied, 586 Pa. 756, 895 A.2d 549 (2006) (quoting Commonwealth v. appeal denied, 586 Pa. 756, 895 A.2d 549 (2006) (quoting Commonwealth v.
Collins, 549 Pa. 593, 604, 702 A.2d 540, 545 (1997), cert denied, 525 U.S. 835 Collins, 549 Pa. 593, 604, 702 A.2d 540, 545 (1997), cert denied, 525 U.S. 835
(1998)). See also, Roxberry, 529 Pa. at 164, 602 A.2d at 828 (It is theoretically (1998)). See also, Roxberry, 529 Pa. at 164, 602 A.2d at 828 (It is theoretically
possible to assert an alibi even when a crime occurs in the same building where possible to assert an alibi even when a crime occurs in the same building where
the accused is located.). the accused is located.).
2. No corroboration needed 2. No corroboration needed
Furthermore, an alibi defense need not be corroborated; it can be Furthermore, an alibi defense need not be corroborated; it can be
established solely by the unsupported testimony of the defendant. Id., 529 Pa. established solely by the unsupported testimony of the defendant. Id., 529 Pa.
Defenses Defenses
at 165, 602 A.2d at 828.1 However, it is common for a defendant to present alibi at 165, 602 A.2d at 828.1 However, it is common for a defendant to present alibi
witnesses or other evidence showing his or her presence away from the victim witnesses or other evidence showing his or her presence away from the victim
and the crime scene in an effort to establish the defense. See Commonwealth v. and the crime scene in an effort to establish the defense. See Commonwealth v.
Hawkins, 586 Pa. 366, 369-370, 894 A.2d 716, 171-718 (2006). Hawkins, 586 Pa. 366, 369-370, 894 A.2d 716, 171-718 (2006).
3. Defense counsel has duty to investigate alibi witnesses 3. Defense counsel has duty to investigate alibi witnesses
When an accused notifies counsel that he has an alibi and has alibi When an accused notifies counsel that he has an alibi and has alibi
witnesses available to testify, it will be deemed ineffective assistance if counsel witnesses available to testify, it will be deemed ineffective assistance if counsel
fails to substantively interview either [the defendant] or his alibi witnesses fails to substantively interview either [the defendant] or his alibi witnesses
and then fails to present the possible alibi witnesses at trial. Commonwealth and then fails to present the possible alibi witnesses at trial. Commonwealth
v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013), appeal denied, --- Pa. ---, 93 A.3d v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013), appeal denied, --- Pa. ---, 93 A.3d
463 (2014). However, a defendant can voluntarily waive the right to call alibi 463 (2014). However, a defendant can voluntarily waive the right to call alibi
witnesses and the waiver precludes a claim of ineffective assistance of trial witnesses and the waiver precludes a claim of ineffective assistance of trial
counsel. Commonwealth v. Rios, 591 Pa. 583, 605, 920 A.2d 790, 802 (2007) counsel. Commonwealth v. Rios, 591 Pa. 583, 605, 920 A.2d 790, 802 (2007)
(trial court conducted a colloquy with defendant as to his choice not to call the (trial court conducted a colloquy with defendant as to his choice not to call the
alleged alibi witnesses and further explained to defendant the available jury alleged alibi witnesses and further explained to defendant the available jury
instructions). instructions).
C. Statutory Notice Requirements C. Statutory Notice Requirements
1. Notice requirement by defense 1. Notice requirement by defense
A defendants right to present evidence of an alibi and to receive an A defendants right to present evidence of an alibi and to receive an
alibi jury instruction is not absolute. A defendant must comply with the notice alibi jury instruction is not absolute. A defendant must comply with the notice
requirements set forth in Pennsylvania Rule of Criminal Procedure 567. See requirements set forth in Pennsylvania Rule of Criminal Procedure 567. See
Commonwealth v. Poindexter, 646 A.2d 1211, 1218-1219 (Pa. Super. 1994), Commonwealth v. Poindexter, 646 A.2d 1211, 1218-1219 (Pa. Super. 1994),
appeal denied, 540 Pa. 580, 655 A.2d 512 (1995)(decided under former Rule appeal denied, 540 Pa. 580, 655 A.2d 512 (1995)(decided under former Rule
305). Rule 567 is designed to enhance the search for truth in the criminal trial 305). Rule 567 is designed to enhance the search for truth in the criminal trial
by insuring both the defendant and the state ample opportunity to investigate by insuring both the defendant and the state ample opportunity to investigate
certain facts crucial to the determination of guilt or innocence. Commonwealth certain facts crucial to the determination of guilt or innocence. Commonwealth
v. Fernandez, 482 A.2d 567, 571 (Pa. Super. 1984)(quoting Williams v. Florida, v. Fernandez, 482 A.2d 567, 571 (Pa. Super. 1984)(quoting Williams v. Florida,
399 U.S. 78, 83 n. 14, 90 S.Ct. 1893, 1897 n. 14, 26 L.Ed.2d 446 (1983)). 399 U.S. 78, 83 n. 14, 90 S.Ct. 1893, 1897 n. 14, 26 L.Ed.2d 446 (1983)).
Pa.R.Crim.P. 567(A) provides, in pertinent part, the following: Pa.R.Crim.P. 567(A) provides, in pertinent part, the following:
(A) Notice by Defendant. A defendant who intends to offer (A) Notice by Defendant. A defendant who intends to offer
the defense of alibi at trial shall file with the clerk of courts the defense of alibi at trial shall file with the clerk of courts
not later than the time required for filing the omnibus pretrial not later than the time required for filing the omnibus pretrial
motion provided in Rule 579 a notice specifying an intention to motion provided in Rule 579 a notice specifying an intention to
offer an alibi defense, and shall serve a copy of the notice and offer an alibi defense, and shall serve a copy of the notice and
a certificate of service on the attorney for the Commonwealth. a certificate of service on the attorney for the Commonwealth.
1 It is not necessary for an alibi defense to be corroborated in order to constitute an alibi. Commonwealth v. Poindexter, 646 A.2d 1211, 1 It is not necessary for an alibi defense to be corroborated in order to constitute an alibi. Commonwealth v. Poindexter, 646 A.2d 1211,
1218 (Pa. Super. 1994), appeal denied, 540 Pa. 580, 655 A.2d 512 (1995) (decided under former Rule 305). 1218 (Pa. Super. 1994), appeal denied, 540 Pa. 580, 655 A.2d 512 (1995) (decided under former Rule 305).
Defenses Defenses
(1) The notice and a certificate of service shall be signed by the (1) The notice and a certificate of service shall be signed by the
attorney for the defendant, or the defendant if unrepresented. attorney for the defendant, or the defendant if unrepresented.
(2) The notice shall contain specific information as to the place or (2) The notice shall contain specific information as to the place or
places where the defendant claims to have been at the time of the places where the defendant claims to have been at the time of the
alleged offense and the names and addresses of the witnesses alleged offense and the names and addresses of the witnesses
whom the defendant intends to call in support of the claim. whom the defendant intends to call in support of the claim.
Pa.R.Crim.P. Rule 567. In accordance with Rule 567(B), if the defendant fails to Pa.R.Crim.P. Rule 567. In accordance with Rule 567(B), if the defendant fails to
file and serve notice of the alibi defense, the Court may: file and serve notice of the alibi defense, the Court may:
i. Exclude entirely any evidence offered by the defendant for the purpose i. Exclude entirely any evidence offered by the defendant for the purpose
of proving the defense (except testimony by the defendant); or of proving the defense (except testimony by the defendant); or
ii. Grant a continuance to enable the Commonwealth to investigate such ii. Grant a continuance to enable the Commonwealth to investigate such
evidence; or evidence; or
iii. Make such other order as the interests of justice require. iii. Make such other order as the interests of justice require.
Furthermore, if the defendant omits any witness from the notice, the Court may: Furthermore, if the defendant omits any witness from the notice, the Court may:
i. Exclude the testimony of the omitted witness; or i. Exclude the testimony of the omitted witness; or
ii. Grant a continuance to enable the Commonwealth to investigate the ii. Grant a continuance to enable the Commonwealth to investigate the
witness; or witness; or
iii. Make such other order as the interests of justice require. iii. Make such other order as the interests of justice require.
The imposition of these sanctions under Rule 567(B) is within the sole The imposition of these sanctions under Rule 567(B) is within the sole
discretion of the trial court. See Commonwealth v. Prisk,744 A.2d 294, 297, n.5 discretion of the trial court. See Commonwealth v. Prisk,744 A.2d 294, 297, n.5
(Pa. Super. 1999); Commonwealth v. Zimmerman, 571 A.2d 1062, 1067 (Pa. (Pa. Super. 1999); Commonwealth v. Zimmerman, 571 A.2d 1062, 1067 (Pa.
Super. 1990) (decided under former Rule 305), appeal denied, 529 Pa. 633, 600 Super. 1990) (decided under former Rule 305), appeal denied, 529 Pa. 633, 600
A.2d 953 (1991), cert. denied, 503 U.S. 945 (1992). A.2d 953 (1991), cert. denied, 503 U.S. 945 (1992).
2. Notice requirement by prosecution 2. Notice requirement by prosecution
As long as the defense complies with the notice requirement, the As long as the defense complies with the notice requirement, the
Commonwealth, under Rule 567 (c), is under a reciprocal notice requirement if it Commonwealth, under Rule 567 (c), is under a reciprocal notice requirement if it
wishes to present witnesses who will discredit or disprove the defendants claim wishes to present witnesses who will discredit or disprove the defendants claim
of alibi. Specifically, within 10 days after receipt of the defendants notice of alibi, of alibi. Specifically, within 10 days after receipt of the defendants notice of alibi,
the Commonwealth must file and serve upon the defendant written notice of the Commonwealth must file and serve upon the defendant written notice of
the names and addresses of all such impeachment witnesses.2 Similar sanctions the names and addresses of all such impeachment witnesses.2 Similar sanctions
are available if the Commonwealth fails to file the reciprocal notice or omits a are available if the Commonwealth fails to file the reciprocal notice or omits a
witnesss name. witnesss name.
2 The court, upon cause shown, may specify a different time for the service of the Commonwealths notice. 2 The court, upon cause shown, may specify a different time for the service of the Commonwealths notice.
Defenses Defenses
3. Continuing duty to disclose 3. Continuing duty to disclose
If either the Defense or the Prosecution learn of additional alibi or If either the Defense or the Prosecution learn of additional alibi or
impeachment witnesses following the filing of the notices, then they must impeachment witnesses following the filing of the notices, then they must
promptly notify the opposing party of the additional witness. Rule 567(E). promptly notify the opposing party of the additional witness. Rule 567(E).
4. Impeachment of defendants alibi defense 4. Impeachment of defendants alibi defense
Once a defendant files a notice under Rule 567 and presents alibi evidence, Once a defendant files a notice under Rule 567 and presents alibi evidence,
the Commonwealth may cross-examine the defendant to impeach the alibi the Commonwealth may cross-examine the defendant to impeach the alibi
defense or present rebuttal witnesses to impeach the defendants alibi evidence. defense or present rebuttal witnesses to impeach the defendants alibi evidence.
Pa.R.Crim.P. 567(G) provides, in pertinent part, the following: Pa.R.Crim.P. 567(G) provides, in pertinent part, the following:
(G) Impeachment. A defendant may testify concerning an alibi (G) Impeachment. A defendant may testify concerning an alibi
notwithstanding that the defendant has not filed notice, but notwithstanding that the defendant has not filed notice, but
if the defendant has filed notice and testifies concerning his if the defendant has filed notice and testifies concerning his
or her presence at the time of the offense at a place or time or her presence at the time of the offense at a place or time
different from that specified in the notice, the defendant may be different from that specified in the notice, the defendant may be
cross-examined concerning such notice. cross-examined concerning such notice.
It is well settled that the cross-examination of the defendant or other It is well settled that the cross-examination of the defendant or other
[e]vidence is admissible in rebuttal to contradict that offered by a defendant or [e]vidence is admissible in rebuttal to contradict that offered by a defendant or
his witnesses to impeach a defendants testimony on alibi. Commonwealth v. his witnesses to impeach a defendants testimony on alibi. Commonwealth v.
Thomas, 575 A.2d 921, 924 (Pa. Super. 1990). Thomas, 575 A.2d 921, 924 (Pa. Super. 1990).
5. Withdrawal of alibi notice 5. Withdrawal of alibi notice
After the filing of a notice under Rule 567(A), if the defendant wishes to After the filing of a notice under Rule 567(A), if the defendant wishes to
abandon the alibi defense, and avoid the cross-examination of the defendant abandon the alibi defense, and avoid the cross-examination of the defendant
as to the alibi notice (and also avoid the presentation of rebuttal witnesses to as to the alibi notice (and also avoid the presentation of rebuttal witnesses to
impeach the alibi notice) the defendant must formally withdraw the notice of impeach the alibi notice) the defendant must formally withdraw the notice of
alibi defense prior to trial. See Commonwealth v. Thomas, 575 A.2d 921, 924 alibi defense prior to trial. See Commonwealth v. Thomas, 575 A.2d 921, 924
(Pa. Super. 1990); Commonwealth v. Hill, 549 A.2d 199, 202 (Pa. Super. 1988), (Pa. Super. 1990); Commonwealth v. Hill, 549 A.2d 199, 202 (Pa. Super. 1988),
D. Burden of Proof D. Burden of Proof
The defendant bears no burden of proof on alibi. Commonwealth v. Pounds, The defendant bears no burden of proof on alibi. Commonwealth v. Pounds,
490 Pa. 621, 634 n.16, 417 A.2d 597, 603 n.16 (1980); see also, Commonwealth v. 490 Pa. 621, 634 n.16, 417 A.2d 597, 603 n.16 (1980); see also, Commonwealth v.
Saunders, 529 Pa. 140, 145, 602 A.2d 816, 818 (1992). In Commonwealth v. Bonomo, Saunders, 529 Pa. 140, 145, 602 A.2d 816, 818 (1992). In Commonwealth v. Bonomo,
396 Pa. 222, 151 A.2d 441 (1959), our Supreme Court stated that the 396 Pa. 222, 151 A.2d 441 (1959), our Supreme Court stated that the
Commonwealth has the burden of proving every essential element Commonwealth has the burden of proving every essential element
necessary for conviction. If the defendant traverses one of necessary for conviction. If the defendant traverses one of
those essential elements by evidence of alibi, his evidence will those essential elements by evidence of alibi, his evidence will
be considered by the jury along with all the other evidence. It be considered by the jury along with all the other evidence. It
Defenses Defenses
may, either standing alone or together with other evidence, be may, either standing alone or together with other evidence, be
sufficient to leave in the minds of the jury a reasonable doubt sufficient to leave in the minds of the jury a reasonable doubt
which, without it, might not otherwise exist. which, without it, might not otherwise exist.
Id., 396 Pa. at 231, 151 A.2d at 446 (emphasis added). See also, Commonwealth v. Rose, Id., 396 Pa. at 231, 151 A.2d at 446 (emphasis added). See also, Commonwealth v. Rose,
457 Pa. 380, 386, 321 A.2d 880, 883 (1974) ([I]n Pennsylvania, the Commonwealth 457 Pa. 380, 386, 321 A.2d 880, 883 (1974) ([I]n Pennsylvania, the Commonwealth
must yet prove beyond a reasonable doubt the defendants presence at the scene of the must yet prove beyond a reasonable doubt the defendants presence at the scene of the
crime at the time it was committed.).3 crime at the time it was committed.).3
E. Alibi Jury Instruction E. Alibi Jury Instruction
1. Purpose of instruction 1. Purpose of instruction
The alibi instruction is designed to ensure that the jury understands the The alibi instruction is designed to ensure that the jury understands the
burden of proof properly lies with the Commonwealth, as there is an inherent burden of proof properly lies with the Commonwealth, as there is an inherent
danger, without the instruction, that the jury will presume that the defendant danger, without the instruction, that the jury will presume that the defendant
has a burden of proof of demonstrating that the alibi is true. See Commonwealth has a burden of proof of demonstrating that the alibi is true. See Commonwealth
v. Collins, 549 Pa. 593, 603, 702 A.2d 540, 544-545 (1997), cert denied, 525 v. Collins, 549 Pa. 593, 603, 702 A.2d 540, 544-545 (1997), cert denied, 525
U.S. 835 (1998). As our Supreme Court explained in Commonwealth v. Mikell, U.S. 835 (1998). As our Supreme Court explained in Commonwealth v. Mikell,
556 Pa. 509, 729 A.2d 566 (1999), where alibi evidence has been introduced 556 Pa. 509, 729 A.2d 566 (1999), where alibi evidence has been introduced
a defendant is entitled to an alibi instruction to alleviate the danger that the a defendant is entitled to an alibi instruction to alleviate the danger that the
jurors might impermissibly view a failure to prove the defense as a sign of the jurors might impermissibly view a failure to prove the defense as a sign of the
defendants guilt. Id., 556 Pa. at 517, 729 A.2d at 570. defendants guilt. Id., 556 Pa. at 517, 729 A.2d at 570.
So long as the defendant establishes an alibi defense, the trial judge may So long as the defendant establishes an alibi defense, the trial judge may
not remove the alibi issue from the jurys consideration simply because the trial not remove the alibi issue from the jurys consideration simply because the trial
judge personally finds the evidence incredible. See Commonwealth v. Roxberry, judge personally finds the evidence incredible. See Commonwealth v. Roxberry,
529 Pa. 160, 166, 602 A.2d 826, 828 (1992). 529 Pa. 160, 166, 602 A.2d 826, 828 (1992).
When instructing the jury, the trial court must make it clear that the When instructing the jury, the trial court must make it clear that the
defendants failure to prove alibi is not tantamount to guilt. See Commonwealth defendants failure to prove alibi is not tantamount to guilt. See Commonwealth
v. Jones, 529 Pa. 149, 151, 602 A.2d 820, 821 (1992). As such, a proper instruction v. Jones, 529 Pa. 149, 151, 602 A.2d 820, 821 (1992). As such, a proper instruction
expressly informs the jury that the alibi evidence, either by itself or together expressly informs the jury that the alibi evidence, either by itself or together
with other evidence, could raise a reasonable doubt as to the defendants guilt with other evidence, could raise a reasonable doubt as to the defendants guilt
and clearly directs the jury to consider this evidence in determining whether and clearly directs the jury to consider this evidence in determining whether
the Commonwealth met its burden of proving beyond a reasonable doubt that the Commonwealth met its burden of proving beyond a reasonable doubt that
the crime was committed by the defendant. Id. (quoting Commonwealth v. the crime was committed by the defendant. Id. (quoting Commonwealth v.
Saunders, 529 Pa. 140, 145, 602 A.2d 816, 818 (1992)).4 Saunders, 529 Pa. 140, 145, 602 A.2d 816, 818 (1992)).4
3 Of course, [i]t is well-established that the defendant has no duty to present evidence and may instead rely on the presumption of 3 Of course, [i]t is well-established that the defendant has no duty to present evidence and may instead rely on the presumption of
innocence and the Commonwealths burden of proof. Commonwealth v. Smith, 609 Pa. 605, 664, 17 A.3d 873, 908 (2011), cert. innocence and the Commonwealths burden of proof. Commonwealth v. Smith, 609 Pa. 605, 664, 17 A.3d 873, 908 (2011), cert.
denied, 133 S.Ct. 24 (2012). denied, 133 S.Ct. 24 (2012).
4 Thus, in giving this particular instruction, the trial judge need not parrot the exact language in Pounds, 490 Pa. at 633, 417 A.2d at 4 Thus, in giving this particular instruction, the trial judge need not parrot the exact language in Pounds, 490 Pa. at 633, 417 A.2d at
603, that alibi evidence even if not wholly believed, may raise a reasonable doubt. Commonwealth v. Saunders, 529 Pa. 140, 145, 603, that alibi evidence even if not wholly believed, may raise a reasonable doubt. Commonwealth v. Saunders, 529 Pa. 140, 145,
602 A.2d 816, 818 (1992). See also, Commonwealth v. Thomas, 552 Pa. 621, 643, 717 A.2d 468, 479 (1998), cert. denied, 528 U.S. 602 A.2d 816, 818 (1992). See also, Commonwealth v. Thomas, 552 Pa. 621, 643, 717 A.2d 468, 479 (1998), cert. denied, 528 U.S.
827 (1999) (noting that in Saunders the Court held that the even if not wholly believed language from Pounds was not necessary in 827 (1999) (noting that in Saunders the Court held that the even if not wholly believed language from Pounds was not necessary in
an alibi instruction, and emphasized that an appellate courts inquiry into the adequacy of a jury charge must not focus on the presence an alibi instruction, and emphasized that an appellate courts inquiry into the adequacy of a jury charge must not focus on the presence
of magic words). of magic words).
Defenses Defenses
An alibi instruction is proper: An alibi instruction is proper:
[S]o long as, when taken as a whole, the instruction makes clear [S]o long as, when taken as a whole, the instruction makes clear
to the jury that a defendants failure to prove the alibi is not in and to the jury that a defendants failure to prove the alibi is not in and
of itself a basis for a finding of guilt and that a reasonable doubt of itself a basis for a finding of guilt and that a reasonable doubt
could arise based upon alibi evidence even where the defense could arise based upon alibi evidence even where the defense
evidence is not wholly believed. Commonwealth v. Saunders, evidence is not wholly believed. Commonwealth v. Saunders,
529 Pa. 140, 602 A.2d 816 (1992). As we stated in Saunders: 529 Pa. 140, 602 A.2d 816 (1992). As we stated in Saunders:
An [alibi] instruction is proper if it expressly informs the An [alibi] instruction is proper if it expressly informs the
jury that the alibi evidence, either by itself or together with jury that the alibi evidence, either by itself or together with
other evidence, could raise a reasonable doubt as to the other evidence, could raise a reasonable doubt as to the
defendants guilt and clearly directs the jury to consider defendants guilt and clearly directs the jury to consider
this evidence in determining whether the Commonwealth this evidence in determining whether the Commonwealth
met its burden of proving beyond a reasonable doubt that met its burden of proving beyond a reasonable doubt that
the crime was committed by the defendant. A charge which the crime was committed by the defendant. A charge which
meets this standard would not be taken to mean that by meets this standard would not be taken to mean that by
introducing alibi evidence the defense assumed a burden of introducing alibi evidence the defense assumed a burden of
proof, which, if not met, could provide a basis for a finding proof, which, if not met, could provide a basis for a finding
of guilt. of guilt.
Further, by instructing the jury that the defense evidence on Further, by instructing the jury that the defense evidence on
alibi either by itself or together with the other evidence alibi either by itself or together with the other evidence
could raise a reasonable doubt, the trial court correctly could raise a reasonable doubt, the trial court correctly
conveyed that a reasonable doubt could arise based upon conveyed that a reasonable doubt could arise based upon
alibi even where the defense evidence was not wholly alibi even where the defense evidence was not wholly
believed. Id. at 145, 602 A.2d at 818. believed. Id. at 145, 602 A.2d at 818.
Commonwealth v. Begley, 566 Pa. 239, 278-279, 780 A.2d 605, 628 - 629 (2001). Commonwealth v. Begley, 566 Pa. 239, 278-279, 780 A.2d 605, 628 - 629 (2001).
2. Necessity of instruction 2. Necessity of instruction
When a defendant offers evidence of alibi and defense counsel argues When a defendant offers evidence of alibi and defense counsel argues
alibi to the jury, the trial courts failure to give an alibi instruction is error. See alibi to the jury, the trial courts failure to give an alibi instruction is error. See
Commonwealth v. Gainer, 580 A.2d 333, 337 (Pa. Super. 1990), appeal denied, Commonwealth v. Gainer, 580 A.2d 333, 337 (Pa. Super. 1990), appeal denied,
529 Pa. 645, 602 A.2d 856 (1992). See also, Commonwealth v. Kolenda, 544 Pa. 529 Pa. 645, 602 A.2d 856 (1992). See also, Commonwealth v. Kolenda, 544 Pa.
426, 432, 676 A.2d 1187, 1190 (1996) (The strength of the Commonwealths 426, 432, 676 A.2d 1187, 1190 (1996) (The strength of the Commonwealths
case does not render the absence of an alibi instruction harmless error.). case does not render the absence of an alibi instruction harmless error.).
3. Limitation on use of instruction 3. Limitation on use of instruction
A defendant is only entitled to an alibi instruction where his or her A defendant is only entitled to an alibi instruction where his or her
explanation places him at the relevant time at a different place than the scene explanation places him at the relevant time at a different place than the scene
involved and so far removed therefrom as to render it impossible for him to be involved and so far removed therefrom as to render it impossible for him to be
the guilty party. Commonwealth v. Collins, 549 Pa. 593, 603, 702 A.2d 540, 545 the guilty party. Commonwealth v. Collins, 549 Pa. 593, 603, 702 A.2d 540, 545
Defenses Defenses
(1997), cert denied, 525 U.S. 835 (1998). (1997), cert denied, 525 U.S. 835 (1998).
Accordingly, where the defendants testimony places him or her close Accordingly, where the defendants testimony places him or her close
enough to the crime scene to have made it physically possible for the defendant enough to the crime scene to have made it physically possible for the defendant
to have committed the crime, an alibi instruction is not required. Id. to have committed the crime, an alibi instruction is not required. Id.
Examples: Examples:
Commonwealth v. Johnson, 538 Pa. 148, 646 A.2d 1170 (1994): no Commonwealth v. Johnson, 538 Pa. 148, 646 A.2d 1170 (1994): no
instruction is required where the defendants testimony placed him instruction is required where the defendants testimony placed him
within 150 feet of the crime scene. within 150 feet of the crime scene.
Commonwealth v. Sileo, 32 A.3d 753, 767 (Pa. Super. 2011), appeal Commonwealth v. Sileo, 32 A.3d 753, 767 (Pa. Super. 2011), appeal
denied, 615 Pa. 785, 42 A.3d 1060 (2012): evidence placed defendant at denied, 615 Pa. 785, 42 A.3d 1060 (2012): evidence placed defendant at
location alibi instruction not appropriate when defense rests on timing location alibi instruction not appropriate when defense rests on timing
rather than location. rather than location.
Commonwealth v. Bookard, 978 A.2d 1006, 1008 (Pa. Super. 2009), appeal Commonwealth v. Bookard, 978 A.2d 1006, 1008 (Pa. Super. 2009), appeal
denied, 605 Pa. 706, 991 A.2d 309 (2010): evidence placed defendant denied, 605 Pa. 706, 991 A.2d 309 (2010): evidence placed defendant
close enough to the scene so that, while difficult, it was not impossible for close enough to the scene so that, while difficult, it was not impossible for
him to have committed crime. him to have committed crime.
4. Ineffective Assistance of Counsel: Lack of Request for 4. Ineffective Assistance of Counsel: Lack of Request for
Instruction Instruction
Furthermore, defense counsel will be found constitutionally ineffective Furthermore, defense counsel will be found constitutionally ineffective
when an alibi defense, supported by alibi evidence, is presented to the jury, when an alibi defense, supported by alibi evidence, is presented to the jury,
but defense counsel fails to request an alibi instruction. See Commonwealth v. but defense counsel fails to request an alibi instruction. See Commonwealth v.
Gainer, 580 A.2d 333, 337 (Pa. Super. 1990), appeal denied, 529 Pa. 645, 602 A.2d Gainer, 580 A.2d 333, 337 (Pa. Super. 1990), appeal denied, 529 Pa. 645, 602 A.2d
856 (1992). Likewise, counsel will be found constitutionally ineffective when he 856 (1992). Likewise, counsel will be found constitutionally ineffective when he
or she requests an alibi instruction, which the trial refuses to give, and defense or she requests an alibi instruction, which the trial refuses to give, and defense
counsel fails to preserve the courts error by not objecting to the charge. Id. counsel fails to preserve the courts error by not objecting to the charge. Id.
However, a finding of prejudice per se is not necessary where an alibi However, a finding of prejudice per se is not necessary where an alibi
instruction has not been requested, although alibi evidence was presented. If instruction has not been requested, although alibi evidence was presented. If
trial counsel articulates a reasonable and sound basis for deliberately declining trial counsel articulates a reasonable and sound basis for deliberately declining
to seek an alibi instruction, then trial counsel is not constitutionally ineffective. to seek an alibi instruction, then trial counsel is not constitutionally ineffective.
Commonwealth v. Hawkins, 586 Pa. 366, 377, 894 A.2d 716, 722 (2006). Commonwealth v. Hawkins, 586 Pa. 366, 377, 894 A.2d 716, 722 (2006).
Thus, in accordance with our Supreme Courts clear Thus, in accordance with our Supreme Courts clear
pronouncement in Hawkins, the PCRA court was, and this Court pronouncement in Hawkins, the PCRA court was, and this Court
is, compelled to analyze the prejudice aspect of the ineffectiveness is, compelled to analyze the prejudice aspect of the ineffectiveness
test in this context. The Hawkins Court clearly articulated that test in this context. The Hawkins Court clearly articulated that
the prejudice element of the Pierce/ Strickland test must be the prejudice element of the Pierce/ Strickland test must be
satisfied before a new trial can be awarded based on trial counsels satisfied before a new trial can be awarded based on trial counsels
Defenses Defenses
failure to request an alibi instruction. See also Commonwealth v. failure to request an alibi instruction. See also Commonwealth v.
Johnson, 600 Pa. 329, 966 A.2d 523, 538 (2009) (counsel cannot Johnson, 600 Pa. 329, 966 A.2d 523, 538 (2009) (counsel cannot
be found per se ineffective under United States v. Cronic, 466 be found per se ineffective under United States v. Cronic, 466
U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), for failing to U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), for failing to
adequately investigate and interview alibi witnesses and before adequately investigate and interview alibi witnesses and before
a defendant will be awarded a new trial, actual prejudice must be a defendant will be awarded a new trial, actual prejudice must be
demonstrated based upon such failure). demonstrated based upon such failure).
In light of our Supreme Courts unequivocal rulings in In light of our Supreme Courts unequivocal rulings in
Hawkins and Johnson, this Court would be seriously remiss, and Hawkins and Johnson, this Court would be seriously remiss, and
indeed face rebuke, if we failed to conduct an inquiry into whether indeed face rebuke, if we failed to conduct an inquiry into whether
Appellant was prejudiced by trial counsels unexplained failure Appellant was prejudiced by trial counsels unexplained failure
to seek an alibi instruction. Commonwealth v. Randolph, 553 Pa. to seek an alibi instruction. Commonwealth v. Randolph, 553 Pa.
224, 718 A.2d 1242, 1245 (1998) (We take this opportunity to 224, 718 A.2d 1242, 1245 (1998) (We take this opportunity to
admonish the Superior Court that it is obligated to apply and not admonish the Superior Court that it is obligated to apply and not
evade our decisions. It is a fundamental precept of our judicial evade our decisions. It is a fundamental precept of our judicial
system that a lower tribunal may not disregard the standards system that a lower tribunal may not disregard the standards
articulated by a higher court.); see also Commonwealth v. articulated by a higher court.); see also Commonwealth v.
Shaffer, 557 Pa. 453, 734 A.2d 840, 844 n. 6 (1999) (same). In Shaffer, 557 Pa. 453, 734 A.2d 840, 844 n. 6 (1999) (same). In
accordance with the directives of Hawkins, we must analyze the accordance with the directives of Hawkins, we must analyze the
prejudice issue. prejudice issue.
Commonwealth v. Sileo, 32 A.3d 753, 758-759 (Pa. Super. 2011), appeal denied, Commonwealth v. Sileo, 32 A.3d 753, 758-759 (Pa. Super. 2011), appeal denied,
615 Pa. 785, 42 A.3d 1060 (2012). 615 Pa. 785, 42 A.3d 1060 (2012).
F. Rebuttal of Alibi Defense F. Rebuttal of Alibi Defense
An alibi defense can be rebutted simply by the victims testimony. See An alibi defense can be rebutted simply by the victims testimony. See
Commonwealth v. Brison, 618 A.2d 420, 423 (Pa. Super. 1992) (finding that jurys Commonwealth v. Brison, 618 A.2d 420, 423 (Pa. Super. 1992) (finding that jurys
evident acceptance of victims testimony was sufficient to rebut defendants alibi evident acceptance of victims testimony was sufficient to rebut defendants alibi
evidence and noting that no other additional evidence was needed to rebut defendants evidence and noting that no other additional evidence was needed to rebut defendants
alibi evidence). The Commonwealth may use any relevant and admissible countervailing alibi evidence). The Commonwealth may use any relevant and admissible countervailing
evidence to rebut alibi evidence. evidence to rebut alibi evidence.
Examples: Examples:
Commonwealth v. Johnson, 788 A.2d 985, 991 (Pa. Super. Commonwealth v. Johnson, 788 A.2d 985, 991 (Pa. Super.
2001): noting that to rebut alibi witnesss testimony that she 2001): noting that to rebut alibi witnesss testimony that she
and defendant lived together the Commonwealth could have and defendant lived together the Commonwealth could have
presented the testimony of neighbors that Appellant did not presented the testimony of neighbors that Appellant did not
live there, or evidence that Appellant resided elsewhere. live there, or evidence that Appellant resided elsewhere.
Commonwealth v. Days, 784 A.2d 817, 822 (Pa. Super. 2001): Commonwealth v. Days, 784 A.2d 817, 822 (Pa. Super. 2001):
no error in permitting the Commonwealth to offer defendants no error in permitting the Commonwealth to offer defendants
convictions for public drunkenness and criminal mischief, not convictions for public drunkenness and criminal mischief, not
Defenses Defenses
as crimes of dishonesty or false statement, but to rebut the as crimes of dishonesty or false statement, but to rebut the
defendants alibi evidence after appellant used the convictions defendants alibi evidence after appellant used the convictions
to victimize and alibi himself. to victimize and alibi himself.
Commonwealth v. Viera, 659 A.2d 1024, 1029 (Pa. Super. Commonwealth v. Viera, 659 A.2d 1024, 1029 (Pa. Super.
1995), appeal denied, 534 Pa. 713, 672 A.2d 307 (1996): no error 1995), appeal denied, 534 Pa. 713, 672 A.2d 307 (1996): no error
in permitting the Commonwealth to present the defendants in permitting the Commonwealth to present the defendants
probation officer as a rebuttal witness to defendants alibi probation officer as a rebuttal witness to defendants alibi
evidence where parole officer did not elaborate as to crime evidence where parole officer did not elaborate as to crime
which caused defendant to serve parole. which caused defendant to serve parole.
Commonwealth v. Flood, 627 A.2d 1193, 1201 (Pa. Super. Commonwealth v. Flood, 627 A.2d 1193, 1201 (Pa. Super.
1993), appeal denied, 537 Pa. 617, 641 A.2d 583 (1994): trial 1993), appeal denied, 537 Pa. 617, 641 A.2d 583 (1994): trial
court did not abuse its discretion in allowing prosecution to court did not abuse its discretion in allowing prosecution to
reopen its case and submit rebuttal affidavit, which rebutted reopen its case and submit rebuttal affidavit, which rebutted
defendants alibi, indicating that gun allegedly used by defendants alibi, indicating that gun allegedly used by
defendant had been purchased for him by his cousin. defendant had been purchased for him by his cousin.
Commonwealth v. Marsh, 566 A.2d 296, 301 (Pa. Super. Commonwealth v. Marsh, 566 A.2d 296, 301 (Pa. Super.
1989): evidence of prior crimes admissible to show common 1989): evidence of prior crimes admissible to show common
scheme where the evidence was probative as it tended to rebut scheme where the evidence was probative as it tended to rebut
the defendants alibi defense. the defendants alibi defense.
G. Assessing the Credibility of an Alibi Witness G. Assessing the Credibility of an Alibi Witness
The assessment of the credibility of an alibi witness is the sole province of the The assessment of the credibility of an alibi witness is the sole province of the
fact-finder. See Commonwealth v. Thomas, 552 Pa. 621, 633, 717 A.2d 468, 478 (1998), fact-finder. See Commonwealth v. Thomas, 552 Pa. 621, 633, 717 A.2d 468, 478 (1998),
cert denied, 528 U.S. 827 (1999); 2 Wests Pennsylvania Practice 12.32, Alibi (2001). cert denied, 528 U.S. 827 (1999); 2 Wests Pennsylvania Practice 12.32, Alibi (2001).
In Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013), appeal denied, In Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013), appeal denied,
--- Pa. ---, 77 A.3d 636 (2013), the Superior Court concluded that the verdict was not --- Pa. ---, 77 A.3d 636 (2013), the Superior Court concluded that the verdict was not
against the manifest weight of the evidence when the jury rejected the testimony of the against the manifest weight of the evidence when the jury rejected the testimony of the
alibi witnesses despite the variances in the victims descriptions of the defendant. alibi witnesses despite the variances in the victims descriptions of the defendant.
5.3 CONSENT DEFENSE5 5.3 CONSENT DEFENSE5
A. Statutory Elements of Defense A. Statutory Elements of Defense
Consent as a defense is set forth in the culpability section of the Crimes Code, Consent as a defense is set forth in the culpability section of the Crimes Code,
which provides, in pertinent part, the following in 18 Pa.Cons.Stat.Ann. 311. which provides, in pertinent part, the following in 18 Pa.Cons.Stat.Ann. 311.
(a) General rule.--The consent of the victim to conduct charged to (a) General rule.--The consent of the victim to conduct charged to
constitute an offense or to the result thereof is a defense if such constitute an offense or to the result thereof is a defense if such
5 See also, Section 5.9(C) as to Mistake of Fact as to a consent defense. 5 See also, Section 5.9(C) as to Mistake of Fact as to a consent defense.
Defenses Defenses
consent negatives an element of the offense or precludes the consent negatives an element of the offense or precludes the
infliction of the harm or evil sought to be prevented by the law infliction of the harm or evil sought to be prevented by the law
defining the offense.6 defining the offense.6
Section 311 is based upon Model Penal Code 2.11 (2001). As explained in the Official Section 311 is based upon Model Penal Code 2.11 (2001). As explained in the Official
Comment to Section 311, generally speaking, the consent of the victim of a crime is Comment to Section 311, generally speaking, the consent of the victim of a crime is
no defense. However, many crimes, especially those of sexual violence, require lack no defense. However, many crimes, especially those of sexual violence, require lack
of consent as an element of the crime. Several sexual violence offenses require that of consent as an element of the crime. Several sexual violence offenses require that
the Commonwealth prove lack of consent. See 18 Pa.Cons.Stat.Ann. 3124.1 (sexual the Commonwealth prove lack of consent. See 18 Pa.Cons.Stat.Ann. 3124.1 (sexual
assault); 18 Pa.Cons.Stat.Ann. 3125 (aggravated indecent assault). assault); 18 Pa.Cons.Stat.Ann. 3125 (aggravated indecent assault).
Other crimes of sexual violence require the prosecution to prove forcible Other crimes of sexual violence require the prosecution to prove forcible
compulsion or threat of forcible compulsion that would prevent resistance by a person compulsion or threat of forcible compulsion that would prevent resistance by a person
of reasonable resolution. See 18 Pa.Cons.Stat.Ann. 3121 (rape); 18 Pa.Cons.Stat. of reasonable resolution. See 18 Pa.Cons.Stat.Ann. 3121 (rape); 18 Pa.Cons.Stat.
Ann. 3123 (involuntary deviate sexual intercourse). Forcible compulsion, or threat Ann. 3123 (involuntary deviate sexual intercourse). Forcible compulsion, or threat
thereof, encompass a lack of consent, although both require proof of something thereof, encompass a lack of consent, although both require proof of something
more. Commonwealth v. Buffington, 574 Pa. 29, 42, 828 A.2d 1024, 2031 (2003); more. Commonwealth v. Buffington, 574 Pa. 29, 42, 828 A.2d 1024, 2031 (2003);
Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010). Commonwealth v. Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010).
Although Pennsylvania law does not require the alleged victim to resist,7 consent Although Pennsylvania law does not require the alleged victim to resist,7 consent
is a defense available to all crimes in the Sexual Offenses chapter: is a defense available to all crimes in the Sexual Offenses chapter:
Provided, however, That nothing in this section shall be Provided, however, That nothing in this section shall be
construed to prohibit a defendant from introducing evidence construed to prohibit a defendant from introducing evidence
that the alleged victim consented to the conduct in question. that the alleged victim consented to the conduct in question.
Not many cases define consent. Not many cases define consent.
[C]onsent is an act of free will. It is not the absence of resistance [C]onsent is an act of free will. It is not the absence of resistance
in the face of actual or threatened force inducing a woman to in the face of actual or threatened force inducing a woman to
submit to a carnal act; active opposition is not a prerequisite to submit to a carnal act; active opposition is not a prerequisite to
finding lack of consent. finding lack of consent.
Commonwealth v. Rough, 418 A.2d 605, 608 (Pa. Super. 1980)(quoting Commonwealth Commonwealth v. Rough, 418 A.2d 605, 608 (Pa. Super. 1980)(quoting Commonwealth
v. Hayden, 307 A.2d 389, 390 (Pa. Super. 1973)). v. Hayden, 307 A.2d 389, 390 (Pa. Super. 1973)).
B. Burden of Proof B. Burden of Proof
While a defendant may assert consent as a defense, nevertheless, where lack of While a defendant may assert consent as a defense, nevertheless, where lack of
consent is an element of the crime, the defendant does not bear the burden of proving consent is an element of the crime, the defendant does not bear the burden of proving
consent: the Commonwealth bears the burden of proving lack of consent, beyond a consent: the Commonwealth bears the burden of proving lack of consent, beyond a
reasonable doubt. Commonwealth v. Prince, 719 A.2d 1086, 1090 (Pa. Super. 1998) reasonable doubt. Commonwealth v. Prince, 719 A.2d 1086, 1090 (Pa. Super. 1998)
7 The alleged victim need not resist the actor in prosecutions under this chapter . . . . 18 Pa.Cons.stat.ann. 3107. 7 The alleged victim need not resist the actor in prosecutions under this chapter . . . . 18 Pa.Cons.stat.ann. 3107.
Defenses Defenses
(emphasis in original); see also, Commonwealth v. Walls, 993 A.2d 289 (Pa. Super. 2010). (emphasis in original); see also, Commonwealth v. Walls, 993 A.2d 289 (Pa. Super. 2010).
There is an exception in Pennsylvanias Rape Shield statute which permits There is an exception in Pennsylvanias Rape Shield statute which permits
evidence of an alleged victims past sexual history when consent is at issue. The Rape evidence of an alleged victims past sexual history when consent is at issue. The Rape
Shield statute provides, in pertinent part: Shield statute provides, in pertinent part:
3104. Evidence of victims sexual conduct 3104. Evidence of victims sexual conduct
(a) General rule.--Evidence of specific instances of the alleged (a) General rule.--Evidence of specific instances of the alleged
victims past sexual conduct, opinion evidence of the alleged victims past sexual conduct, opinion evidence of the alleged
victims past sexual conduct, and reputation evidence of the victims past sexual conduct, and reputation evidence of the
alleged victims past sexual conduct shall not be admissible in alleged victims past sexual conduct shall not be admissible in
prosecutions under this chapter except evidence of the alleged prosecutions under this chapter except evidence of the alleged
victims past sexual conduct with the defendant where consent victims past sexual conduct with the defendant where consent
of the alleged victim is at issue and such evidence is otherwise of the alleged victim is at issue and such evidence is otherwise
admissible pursuant to the rules of evidence.8 admissible pursuant to the rules of evidence.8
A defendant who wishes to offer evidence of the alleged victims past sexual A defendant who wishes to offer evidence of the alleged victims past sexual
conduct with the defendant to support a defense of consent must file a written motion conduct with the defendant to support a defense of consent must file a written motion
and offer of proof at the time of trial in accordance with 18 Pa.Cons.Stat.Ann. 3104(b).9 and offer of proof at the time of trial in accordance with 18 Pa.Cons.Stat.Ann. 3104(b).9
If the in camera hearing, held pursuant to 3104(b), provides evidence that is relevant If the in camera hearing, held pursuant to 3104(b), provides evidence that is relevant
and admissible to the tendered defense, then the trial court is required to receive the and admissible to the tendered defense, then the trial court is required to receive the
evidence and permit the jury to assess its credibility. Commonwealth v. Baronner, 471 evidence and permit the jury to assess its credibility. Commonwealth v. Baronner, 471
C. Ineffective Consent C. Ineffective Consent
Under the Crimes Code, assent to a sexual encounter does not constitute consent Under the Crimes Code, assent to a sexual encounter does not constitute consent
if: if:
(1) it is given by a person who is legally incapacitated to authorize (1) it is given by a person who is legally incapacitated to authorize
the conduct charged to constitute the offense; the conduct charged to constitute the offense;
(2) it is given by a person who by reason of youth, mental disease (2) it is given by a person who by reason of youth, mental disease
or defect or intoxication is manifestly unable or known by the or defect or intoxication is manifestly unable or known by the
actor to be unable to make a reasonable judgment as to the nature actor to be unable to make a reasonable judgment as to the nature
or harmfulness of the conduct charged to constitute the offense; or harmfulness of the conduct charged to constitute the offense;
(3) it is given by a person whose improvident consent is sought to (3) it is given by a person whose improvident consent is sought to
be prevented by the law defining the offense; or be prevented by the law defining the offense; or
(4) it is induced by force, duress or deception of a kind sought to be (4) it is induced by force, duress or deception of a kind sought to be
prevented by the law defining the offense. prevented by the law defining the offense.
8 18 Pa.Cons.stat.ann. 3104(a) (emphasis added). 8 18 Pa.Cons.stat.ann. 3104(a) (emphasis added).

9 For a detailed discussion of the substantive and procedural requirements of the Pennsylvania Rape Shield Law, please see Section 5.5(A) 9 For a detailed discussion of the substantive and procedural requirements of the Pennsylvania Rape Shield Law, please see Section 5.5(A)
and Chapter 6, 6.8 EVIDENCE OF VICTIMS PAST SEXUAL CONDUCT. and Chapter 6, 6.8 EVIDENCE OF VICTIMS PAST SEXUAL CONDUCT.
Defenses Defenses
18 Pa.Cons.Stat.Ann. 311(c)(1)-(4). For example: 18 Pa.Cons.Stat.Ann. 311(c)(1)-(4). For example:
Commonwealth v. Erney, 548 Pa. 467, 473-474, 698 A.2d 56, Commonwealth v. Erney, 548 Pa. 467, 473-474, 698 A.2d 56,
59 (1997) (where victim had impaired physical and mental 59 (1997) (where victim had impaired physical and mental
condition due to intoxication so as to be unable to knowingly condition due to intoxication so as to be unable to knowingly
consent, submission to intercourse is involuntary). consent, submission to intercourse is involuntary).
Commonwealth v. Cordoba, 902 A.2d 1280, 1286 (Pa. Super. Commonwealth v. Cordoba, 902 A.2d 1280, 1286 (Pa. Super.
2006) (where defendant knew he was HIV-infected and 2006) (where defendant knew he was HIV-infected and
nonetheless had sex with his victim without informing him of nonetheless had sex with his victim without informing him of
that fact, trial court was incorrect in concluding that defendant that fact, trial court was incorrect in concluding that defendant
and victim had consensual relations as consent is ineffective and victim had consensual relations as consent is ineffective
when induced by deception, citing 18 Pa.Cons.Stat.Ann. when induced by deception, citing 18 Pa.Cons.Stat.Ann.
311(c)(4)). 311(c)(4)).
D. Consent as a Valid Defense D. Consent as a Valid Defense
Effective consent to sexual intercourse will negate a finding of forcible compulsion. Effective consent to sexual intercourse will negate a finding of forcible compulsion.
See Commonwealth v. Rhoades, 510 Pa. 537, 554, 510 A.2d 1217, 1225 (1986). See Commonwealth v. Rhoades, 510 Pa. 537, 554, 510 A.2d 1217, 1225 (1986).
E. Consent Inapplicable to Certain Sexual Offenses E. Consent Inapplicable to Certain Sexual Offenses
1. Victims younger than thirteen years old 1. Victims younger than thirteen years old
In cases of rape, involuntary deviate sexual intercourse, sexual assault, In cases of rape, involuntary deviate sexual intercourse, sexual assault,
aggravated indecent assault, or indecent assault, consent is no defense if the aggravated indecent assault, or indecent assault, consent is no defense if the
victim is less than thirteen years of age. victim is less than thirteen years of age.
18 Pa.Cons.Stat.Ann. 3121(c), Rape of a Child; 18 Pa.Cons.Stat.Ann. 3121(c), Rape of a Child;

18 Pa.Cons.Stat.Ann. 3121(d), Rape of a Child with serious 18 Pa.Cons.Stat.Ann. 3121(d), Rape of a Child with serious
bodily injury; bodily injury;
18 Pa.Cons.Stat.Ann. 3123(b), IDSI with a Child; 18 Pa.Cons.Stat.Ann. 3123(b), IDSI with a Child;
18 Pa.Cons.Stat.Ann. 3123(b), IDSI with a Child with 18 Pa.Cons.Stat.Ann. 3123(b), IDSI with a Child with
serious bodily injury; serious bodily injury;
18 Pa.Cons.Stat.Ann. 3125(a)(7), Aggravated Indecent 18 Pa.Cons.Stat.Ann. 3125(a)(7), Aggravated Indecent
Assault; Assault;
18 Pa.Cons.Stat.Ann. 3125(b), Aggravated Indecent 18 Pa.Cons.Stat.Ann. 3125(b), Aggravated Indecent
Assault of a Child; Assault of a Child;
18 Pa.Cons.Stat.Ann. 3126(a)(7), Indecent Assault. 18 Pa.Cons.Stat.Ann. 3126(a)(7), Indecent Assault.
In In re: B.A.M., 806 A.2d 893 (Pa. Super. 2002), the Superior Court In In re: B.A.M., 806 A.2d 893 (Pa. Super. 2002), the Superior Court
held that the Legislature did not seek to criminalize consensual sexual activity held that the Legislature did not seek to criminalize consensual sexual activity
between two eleven year old peers. The court pointed out that the Legislature between two eleven year old peers. The court pointed out that the Legislature
chose thirteen as the age of consent, and just as a child under thirteen is legally chose thirteen as the age of consent, and just as a child under thirteen is legally
incapable of consenting to sex, such a child is equally incapable of being criminally incapable of consenting to sex, such a child is equally incapable of being criminally
Defenses Defenses
liable for initiating sexual contact. However, in Commonwealth v. Bricker, 41 liable for initiating sexual contact. However, in Commonwealth v. Bricker, 41
A.3d 872 (Pa. Super. 2012), the Superior Court also held that an adult who solicits A.3d 872 (Pa. Super. 2012), the Superior Court also held that an adult who solicits
sex between two 11 year-old victims is criminally responsible even though the sex between two 11 year-old victims is criminally responsible even though the
victims could have been found criminally liable to each other for the mutually victims could have been found criminally liable to each other for the mutually
agreed-upon sexual activity. agreed-upon sexual activity.
2. Victims thirteen and older but under sixteen years old 2. Victims thirteen and older but under sixteen years old
Victims who are thirteen or older, but under sixteen, do not have the legal Victims who are thirteen or older, but under sixteen, do not have the legal
capacity to consent to sexual contact with an individual who is four or more years capacity to consent to sexual contact with an individual who is four or more years
older than the victim and who is not married to the victim: older than the victim and who is not married to the victim:
18 Pa.Cons.Stat.Ann. 3123(a)(7), IDSI; 18 Pa.Cons.Stat.Ann. 3123(a)(7), IDSI;

18 Pa.Cons.Stat.Ann. 3125(a)(8), Aggravated Indecent 18 Pa.Cons.Stat.Ann. 3125(a)(8), Aggravated Indecent
Assault; Assault;
18 Pa.Cons.Stat.Ann. 3126(a)(8), Indecent Assault. 18 Pa.Cons.Stat.Ann. 3126(a)(8), Indecent Assault.
Consensual intercourse in these circumstances is not criminalized as Rape Consensual intercourse in these circumstances is not criminalized as Rape
under 18 Pa.Cons.Stat.Ann. 3121 but rather as Statutory Sexual Assault under under 18 Pa.Cons.Stat.Ann. 3121 but rather as Statutory Sexual Assault under
3. Statutory Sexual Assault 3. Statutory Sexual Assault
In addition, the recent amendments to the Statutory Sexual Assault In addition, the recent amendments to the Statutory Sexual Assault
statute, 18 Pa.Cons.Stat.Ann. 3122.1, separate the two sections of the crime statute, 18 Pa.Cons.Stat.Ann. 3122.1, separate the two sections of the crime
into a Felony of the First Degree and a Felony of the Secord Degree. Both are into a Felony of the First Degree and a Felony of the Secord Degree. Both are
predicated on the complainant being under the age of sixteen and the defendant predicated on the complainant being under the age of sixteen and the defendant
not being married: not being married:
It is a Felony of the First Degree if the person engages in sexual intercourse It is a Felony of the First Degree if the person engages in sexual intercourse
with the complainant and is 11 or more years older than the complainant; with the complainant and is 11 or more years older than the complainant;
It is a Felony of the Second Degree if the person engages in sexual It is a Felony of the Second Degree if the person engages in sexual
intercourse with the complainant and is either (1) four years older but intercourse with the complainant and is either (1) four years older but
less than eight years older, or (2) eight years older but less than 11 years less than eight years older, or (2) eight years older but less than 11 years
older. older.
The distinction between the two levels of statutory sexual assault is The distinction between the two levels of statutory sexual assault is
important. If the charge of Statutory Sexual Assault is graded as a Felony of the important. If the charge of Statutory Sexual Assault is graded as a Felony of the
First Degree, i.e., the defendant is 11 or more years older than the complainant, First Degree, i.e., the defendant is 11 or more years older than the complainant,
who is under the age of 16, pursuant to 18 Pa.Cons.Stat.Ann. 3122.1(b), then who is under the age of 16, pursuant to 18 Pa.Cons.Stat.Ann. 3122.1(b), then
under SORNA, the offense is classified as a Tier III Sexual Offense. See 42 Pa.Cons. under SORNA, the offense is classified as a Tier III Sexual Offense. See 42 Pa.Cons.
Stat.Ann. 9799.14(d). Otherwise, it is classified as a Tier II Sexual Offense under Stat.Ann. 9799.14(d). Otherwise, it is classified as a Tier II Sexual Offense under
SORNA. See 42 Pa.Cons.Stat.Ann. 9799.14(c).10 SORNA. See 42 Pa.Cons.Stat.Ann. 9799.14(c).10
10 For additional information, see Chapter 9, Section 9.7, Sexually Violent Predator Assessment and Chapter 11, Sex Offender 10 For additional information, see Chapter 9, Section 9.7, Sexually Violent Predator Assessment and Chapter 11, Sex Offender
Registration and Notification. Registration and Notification.
Defenses Defenses
5.4 DURESS 5.4 DURESS
A. Statutory Elements A. Statutory Elements
Duress is a threat of harm made to compel a person to do something against Duress is a threat of harm made to compel a person to do something against
his or her will or judgment. . . . Blacks Law Dictionary 542 (8th ed. 2004). It is rarely, his or her will or judgment. . . . Blacks Law Dictionary 542 (8th ed. 2004). It is rarely,
if ever, raised in a crime of sexual violence. Because it is a defense that is legislatively if ever, raised in a crime of sexual violence. Because it is a defense that is legislatively
recognized, it is discussed herein. recognized, it is discussed herein.
The defense of duress is codified in Section 309 of the Crimes Code. Section 309 The defense of duress is codified in Section 309 of the Crimes Code. Section 309
states the following: states the following:
(a) General rule.--It is a defense that the actor engaged in (a) General rule.--It is a defense that the actor engaged in
the conduct charged to constitute an offense because he was the conduct charged to constitute an offense because he was
coerced to do so by the use of, or a threat to use, unlawful force coerced to do so by the use of, or a threat to use, unlawful force
against his person or the person of another, which a person of against his person or the person of another, which a person of
reasonable firmness in his situation would have been unable reasonable firmness in his situation would have been unable
to resist. to resist.
(b) Exception.--The defense provided by subsection (a) of this (b) Exception.--The defense provided by subsection (a) of this
section is unavailable if the actor recklessly placed himself in section is unavailable if the actor recklessly placed himself in
a situation in which it was probable that he would be subjected a situation in which it was probable that he would be subjected
to duress. The defense is also unavailable if he was negligent to duress. The defense is also unavailable if he was negligent
in placing himself in such a situation, whenever negligence in placing himself in such a situation, whenever negligence
suffices to establish culpability for the offense charged. suffices to establish culpability for the offense charged.
The elements necessary to establish duress as a defense are: The elements necessary to establish duress as a defense are:
i) there was a use of, or threat to use, unlawful force against the i) there was a use of, or threat to use, unlawful force against the
defendant or another person; and defendant or another person; and
ii) the use of, or threat to use, unlawful force was of such a nature ii) the use of, or threat to use, unlawful force was of such a nature
that a person of reasonable firmness in the defendants that a person of reasonable firmness in the defendants
situation would have been unable to resist it. situation would have been unable to resist it.
See Commonwealth v. DeMarco, 570 Pa. 263, 272, 809 A.2d 256, 261-262 (2002). See Commonwealth v. DeMarco, 570 Pa. 263, 272, 809 A.2d 256, 261-262 (2002).
The defendant does not bear the burden of proving the defense of duress. If The defendant does not bear the burden of proving the defense of duress. If
the defendant proffers evidence to raise the defense, the prosecution must disprove the the defendant proffers evidence to raise the defense, the prosecution must disprove the
defense by proof beyond a reasonable doubt. See Commonwealth v. Morningwake, 595 defense by proof beyond a reasonable doubt. See Commonwealth v. Morningwake, 595
B. Degree of Force Required B. Degree of Force Required
To establish the duress defense under Section 309, the force or threatened force To establish the duress defense under Section 309, the force or threatened force
Defenses Defenses
does not need to be of present and impending death or serious bodily injury; rather, the does not need to be of present and impending death or serious bodily injury; rather, the
relevant inquiry is relevant inquiry is
whether the force or threatened force was a type of unlawful whether the force or threatened force was a type of unlawful
force that a person of reasonable firmness in [the defendants] force that a person of reasonable firmness in [the defendants]
situation would have been unable to resist. situation would have been unable to resist.
Commonwealth v. DeMarco, 570 Pa. 263, 272, 809 A.2d 256, 262 (2002). Commonwealth v. DeMarco, 570 Pa. 263, 272, 809 A.2d 256, 262 (2002).
The Pennsylvania Supreme Court in Commonwealth v. DeMarco, 570 Pa. 263, The Pennsylvania Supreme Court in Commonwealth v. DeMarco, 570 Pa. 263,
809 A.2d 256 (2002) noted that the foregoing test is a hybrid objective-subjective one, 809 A.2d 256 (2002) noted that the foregoing test is a hybrid objective-subjective one,
570 Pa. at 273, 809 A.2d at 262, and explained that 570 Pa. at 273, 809 A.2d at 262, and explained that
the trier of fact must consider whether an objective person of the trier of fact must consider whether an objective person of
reasonable firmness would have been able to resist the threat, it reasonable firmness would have been able to resist the threat, it
must ultimately base its decision on whether that person would must ultimately base its decision on whether that person would
have been able to resist the threat if he was subjectively placed in have been able to resist the threat if he was subjectively placed in
the defendants situation. Therefore, in making its determination, the defendants situation. Therefore, in making its determination,
the trier of fact must consider stark, tangible factors, which the trier of fact must consider stark, tangible factors, which
differentiate the [defendant] from another, like his size or strength differentiate the [defendant] from another, like his size or strength
or age or health. MODEL PENAL CODE 2.09 cmt. at 7 (Tent. or age or health. MODEL PENAL CODE 2.09 cmt. at 7 (Tent.
Draft No. 10, 1960). Although the trier of fact is not to consider Draft No. 10, 1960). Although the trier of fact is not to consider
the defendants particular characteristics of temperament, the defendants particular characteristics of temperament,
intelligence, courageousness, or moral fortitude, the fact that a intelligence, courageousness, or moral fortitude, the fact that a
defendant suffers from a gross and verifiable mental disability defendant suffers from a gross and verifiable mental disability
that may establish irresponsibility is a relevant consideration. that may establish irresponsibility is a relevant consideration.
Id. at 6. Moreover, the trier of fact should consider any salient Id. at 6. Moreover, the trier of fact should consider any salient
situational factors surrounding the defendant at the time of the situational factors surrounding the defendant at the time of the
alleged duress, such as the severity of the offense the defendant alleged duress, such as the severity of the offense the defendant
was asked to commit, the nature of the force used or threatened was asked to commit, the nature of the force used or threatened
to be used, and the alternative ways in which the defendant may to be used, and the alternative ways in which the defendant may
have averted the force or threatened force. have averted the force or threatened force.
DeMarco, 570 Pa. at 273, 809 A.2d at 262. DeMarco, 570 Pa. at 273, 809 A.2d at 262.
C. Exceptions to Duress Defense C. Exceptions to Duress Defense
1. Recklessness 1. Recklessness
The duress defense is not available if the evidence establishes that the The duress defense is not available if the evidence establishes that the
defendant recklessly placed himself in a situation where it was probable that he defendant recklessly placed himself in a situation where it was probable that he
would be subject to duress. See 18 Pa.Cons.Stat.Ann. 309(b). Our Supreme would be subject to duress. See 18 Pa.Cons.Stat.Ann. 309(b). Our Supreme
Court has defined reckless under Section 309 as follows: Court has defined reckless under Section 309 as follows:
A person acts recklessly with respect to a material element A person acts recklessly with respect to a material element
Defenses Defenses
of an offense when he consciously disregards a substantial of an offense when he consciously disregards a substantial
and unjustifiable risk that the material element exists or and unjustifiable risk that the material element exists or
will result from his conduct. The risk must be of such a will result from his conduct. The risk must be of such a
nature and degree that, considering the nature and intent nature and degree that, considering the nature and intent
of the actors conduct and the circumstances known to him, of the actors conduct and the circumstances known to him,
its disregard involves a gross deviation from the standard its disregard involves a gross deviation from the standard
of conduct that a reasonable person would observe in the of conduct that a reasonable person would observe in the
actors situation. actors situation.
DeMarco, 570 Pa. at 273-274, 809 A.2d at 262 (citing 18 Pa.Cons.Stat.Ann. DeMarco, 570 Pa. at 273-274, 809 A.2d at 262 (citing 18 Pa.Cons.Stat.Ann.
302(b)(3)) (emphasis in original). The determination of recklessness is also a 302(b)(3)) (emphasis in original). The determination of recklessness is also a
hybrid objective-subjective one. Id., 570 Pa. at 274, 809 A.2d at 262. hybrid objective-subjective one. Id., 570 Pa. at 274, 809 A.2d at 262.
The trier of fact must decide whether the defendant The trier of fact must decide whether the defendant
disregarded a risk that involves a gross deviation from disregarded a risk that involves a gross deviation from
what an objective reasonable person would observe if he what an objective reasonable person would observe if he
was subjectively placed in the [defendants] situation. 18 was subjectively placed in the [defendants] situation. 18
Pa.C.S. 302(b)(3). Thus, in making its determination, the Pa.C.S. 302(b)(3). Thus, in making its determination, the
trier of fact must again take into account the stark tangible trier of fact must again take into account the stark tangible
factors that differentiate the defendant from another factors that differentiate the defendant from another
person and the salient situational factors surrounding the person and the salient situational factors surrounding the
Id., 570 Pa. at 274, 809 A.2d at 262-263. Id., 570 Pa. at 274, 809 A.2d at 262-263.
2. Negligence 2. Negligence
The defense of duress is also unavailable if a defendant were negligent in The defense of duress is also unavailable if a defendant were negligent in
placing himself in a situation where he would be subjected to duress, whenever placing himself in a situation where he would be subjected to duress, whenever
negligence suffices to establish culpability for the offense charged. See 18 negligence suffices to establish culpability for the offense charged. See 18
Pa.Cons.Stat.Ann. 309(b). See also, Commonwealth v. Knight, 611 A.2d 1199, Pa.Cons.Stat.Ann. 309(b). See also, Commonwealth v. Knight, 611 A.2d 1199,
1205 (Pa. Super. 1992), appeal denied, 533 Pa. 657, 625 A.2d 1192 (1993). The 1205 (Pa. Super. 1992), appeal denied, 533 Pa. 657, 625 A.2d 1192 (1993). The
Crimes Code defines negligence as follows: Crimes Code defines negligence as follows:
A person acts negligently with respect to a material element A person acts negligently with respect to a material element
of an offense when he should be aware of a substantial and of an offense when he should be aware of a substantial and
unjustifiable risk that the material element exists or will unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a nature result from his conduct. The risk must be of such a nature
and degree that the actors failure to perceive it, considering and degree that the actors failure to perceive it, considering
the nature and intent of his conduct and the circumstances the nature and intent of his conduct and the circumstances
known to him, involves a gross deviation from the standard known to him, involves a gross deviation from the standard
of care that a reasonable person would observe in the of care that a reasonable person would observe in the
actors situation. actors situation.
18 Pa.Cons.Stat.Ann. 302(b)(4). 18 Pa.Cons.Stat.Ann. 302(b)(4).
Defenses Defenses
3.5 IMPEACHMENT WITH PRIOR SEXUAL CONDUCT 3.5 IMPEACHMENT WITH PRIOR SEXUAL CONDUCT
A. Pennsylvanias Rape Shield Statute A. Pennsylvanias Rape Shield Statute
The admission of evidence of a complainants prior sexual conduct may be The admission of evidence of a complainants prior sexual conduct may be
necessary to preserve the accuseds constitutional confrontation clause rights. In the necessary to preserve the accuseds constitutional confrontation clause rights. In the
context of a case of sexual violence, however, the purpose of the Rape Shield Law is to context of a case of sexual violence, however, the purpose of the Rape Shield Law is to
prevent a trial from shifting its focus from the culpability of the accused toward the prevent a trial from shifting its focus from the culpability of the accused toward the
virtue and chastity of the victim. 18 Pa.Cons.Stat.Ann. 3104.11 virtue and chastity of the victim. 18 Pa.Cons.Stat.Ann. 3104.11
The law is well settled that the Rape Shield Law is a bar to admission of testimony The law is well settled that the Rape Shield Law is a bar to admission of testimony
of prior sexual conduct involving a victim, whether it is consensual or the result of of prior sexual conduct involving a victim, whether it is consensual or the result of
nonconsensual or assaultive behavior, unless it has probative value which is exculpatory nonconsensual or assaultive behavior, unless it has probative value which is exculpatory
to the defendant. Under such circumstances, the trial court in an in-camera hearing will to the defendant. Under such circumstances, the trial court in an in-camera hearing will
carefully weigh the evidence, and in the judges discretion make a determination as to carefully weigh the evidence, and in the judges discretion make a determination as to
the admissibility of that evidence. Commonwealth v. Fink, 791 A.2d 1235, 1241-1242 the admissibility of that evidence. Commonwealth v. Fink, 791 A.2d 1235, 1241-1242
(Pa. Super. 2002). The trial court must determine whether its probative value outweighs (Pa. Super. 2002). The trial court must determine whether its probative value outweighs
its prejudicial effect. In the absence of an abuse of discretion, that decision will stand on its prejudicial effect. In the absence of an abuse of discretion, that decision will stand on
appeal. Commonwealth v. Allburn, 721 A.2d 363, 266 (Pa. Super. 1998). appeal. Commonwealth v. Allburn, 721 A.2d 363, 266 (Pa. Super. 1998).
In Commonwealth v. Spiewak, 533 Pa. 1, 617 A.2d 696 (1992), the Pennsylvania In Commonwealth v. Spiewak, 533 Pa. 1, 617 A.2d 696 (1992), the Pennsylvania
Supreme Court held that evidence of a complainants prior sexual history is admissible if Supreme Court held that evidence of a complainants prior sexual history is admissible if
it is highly probative of the victims credibility and is necessary to allow the jury to make it is highly probative of the victims credibility and is necessary to allow the jury to make
a fair determination of guilt or innocence. Id. at 13, 617 A.2d at 702. Of course, proffers a fair determination of guilt or innocence. Id. at 13, 617 A.2d at 702. Of course, proffers
which relate to alleged prior sexual conduct of the complainant trigger an inquiry into the which relate to alleged prior sexual conduct of the complainant trigger an inquiry into the
applicability of the Rape Shield Law, 18 Pa.Cons.Stat.Ann. 3104. The Rape Shield Law applicability of the Rape Shield Law, 18 Pa.Cons.Stat.Ann. 3104. The Rape Shield Law
prohibits the introduction of evidence relating to the victims sexual history, including prohibits the introduction of evidence relating to the victims sexual history, including
conduct and reputation, and states: conduct and reputation, and states:
General rule.--Evidence of specific instances of the alleged General rule.--Evidence of specific instances of the alleged
victims past sexual conduct, opinion evidence of the alleged victims past sexual conduct, opinion evidence of the alleged
victims past sexual conduct, and reputation evidence of the victims past sexual conduct, and reputation evidence of the
alleged victims past sexual conduct shall not be admissible in alleged victims past sexual conduct shall not be admissible in
prosecutions under this chapter except evidence of the alleged prosecutions under this chapter except evidence of the alleged
victims past sexual conduct with the defendant where consent victims past sexual conduct with the defendant where consent
of the alleged victim is at issue and such evidence is otherwise of the alleged victim is at issue and such evidence is otherwise
admissible pursuant to the rules of evidence. admissible pursuant to the rules of evidence.
18 Pa.Cons.Stat.Ann. 3104(a). However, as stated above, our Supreme Court 18 Pa.Cons.Stat.Ann. 3104(a). However, as stated above, our Supreme Court
has addressed the type of evidence that is admissible albeit the prohibition of the Rape has addressed the type of evidence that is admissible albeit the prohibition of the Rape
Shield Law. Shield Law.
11 For a detailed discussion of the substantive and procedural requirements of the Pennsylvania Rape Shield Law, please see Chapter 6, 11 For a detailed discussion of the substantive and procedural requirements of the Pennsylvania Rape Shield Law, please see Chapter 6,
6.8 EVIDENCE OF VICTIMS PAST SEXUAL CONDUCT. 6.8 EVIDENCE OF VICTIMS PAST SEXUAL CONDUCT.
Defenses Defenses
In Spiewak, the defendant sought to impeach the credibility of the minor victim In Spiewak, the defendant sought to impeach the credibility of the minor victim
by cross-examining her about an earlier incident in which she testified that that an older by cross-examining her about an earlier incident in which she testified that that an older
man who was a friend of the defendants had seduced her. The relevancy to credibility man who was a friend of the defendants had seduced her. The relevancy to credibility
was that this prior testimony describing the encounter was substantially similar to the was that this prior testimony describing the encounter was substantially similar to the
description of the encounter with the defendant to which the victim had testified. The description of the encounter with the defendant to which the victim had testified. The
Supreme Court reversed the trial courts ruling that the Rape Shield Law precluded such Supreme Court reversed the trial courts ruling that the Rape Shield Law precluded such
a line of questioning. The Court reasoned that the Rape Shield Law does not prohibit a line of questioning. The Court reasoned that the Rape Shield Law does not prohibit
the admission of relevant evidence which may exculpate a defendant of the crime the admission of relevant evidence which may exculpate a defendant of the crime
with which he is charged. Further, using a balancing test, the Rape Shield Law must with which he is charged. Further, using a balancing test, the Rape Shield Law must
yield to a defendants constitutional right to challenge the credibility of a witness and yield to a defendants constitutional right to challenge the credibility of a witness and
present evidence necessary to permit or allow a jury to make a fair determination of the present evidence necessary to permit or allow a jury to make a fair determination of the
defendants guilt or innocence. Id., 533 Pa. at 7-10, 617 A.2d at 699702. defendants guilt or innocence. Id., 533 Pa. at 7-10, 617 A.2d at 699702.
In Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985), the Superior Court In Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985), the Superior Court
permitted admission of evidence of the victims prior sexual activity, i.e., evidence of permitted admission of evidence of the victims prior sexual activity, i.e., evidence of
her prior sexual conduct with one of her brothers, on the issue of her bias against the her prior sexual conduct with one of her brothers, on the issue of her bias against the
defendant, provided that a three-part test was met at an in camera hearing similar to defendant, provided that a three-part test was met at an in camera hearing similar to
that outlined in 18 Pa.Cons.Stat.Ann. 3104(b). The theory of bias was based on the that outlined in 18 Pa.Cons.Stat.Ann. 3104(b). The theory of bias was based on the
argument that the victim wanted the father removed from the house so that she could argument that the victim wanted the father removed from the house so that she could
reunite with her brother. The Superior Court referred to the Confrontation Clause under reunite with her brother. The Superior Court referred to the Confrontation Clause under
the Sixth Amendment of the United States Constitution in holding that the Rape Shield the Sixth Amendment of the United States Constitution in holding that the Rape Shield
Law can not be used to exclude relevant evidence that shows the bias of a witness or Law can not be used to exclude relevant evidence that shows the bias of a witness or
attacks the credibility of the witness. Thus, relevant evidence of such past sexual conduct attacks the credibility of the witness. Thus, relevant evidence of such past sexual conduct
would be admissible as long as it would not so inflame the minds of the jurors that its would be admissible as long as it would not so inflame the minds of the jurors that its
probative value is outweighed by unfair prejudice. Id. at 401. probative value is outweighed by unfair prejudice. Id. at 401.
In Commonwealth v. Fernsler, 715 A.2d 435 (Pa. Super. 1998), the defendant In Commonwealth v. Fernsler, 715 A.2d 435 (Pa. Super. 1998), the defendant
filed a Motion in Limine to question the child victim about his prior sexual activity, filed a Motion in Limine to question the child victim about his prior sexual activity,
specifically his disclosure of a previous assault he made upon his half-sister. The trial specifically his disclosure of a previous assault he made upon his half-sister. The trial
court granted the motion. The Superior Court affirmed and again held that the Rape court granted the motion. The Superior Court affirmed and again held that the Rape
Shield Law, if rigidly construed, could impermissibly encroach upon defendants right Shield Law, if rigidly construed, could impermissibly encroach upon defendants right
to confront and cross-examine witnesses; in those cases, Rape Shield Law must bow to to confront and cross-examine witnesses; in those cases, Rape Shield Law must bow to
the need to permit accused an opportunity to present genuinely exculpatory evidence. the need to permit accused an opportunity to present genuinely exculpatory evidence.
Id. at 442. Id. at 442.
The proffer must be specific and highly probative to issues of credibility. The The proffer must be specific and highly probative to issues of credibility. The
requirement of a specific proffer of evidence was designed to prevent a fishing requirement of a specific proffer of evidence was designed to prevent a fishing
expedition into the areas protected by the Rape Shield Law. Commonwealth v. Burns, expedition into the areas protected by the Rape Shield Law. Commonwealth v. Burns,
988 A.2d 684, 691 (Pa. Super. 2009), appeal denied, 608 Pa. 615, 8 A.3d 341 (2010). 988 A.2d 684, 691 (Pa. Super. 2009), appeal denied, 608 Pa. 615, 8 A.3d 341 (2010).
The Rape Shield Law may not be used to exclude relevant evidence showing a The Rape Shield Law may not be used to exclude relevant evidence showing a
witness bias or attacking credibility, and evidence that may tend to directly exculpate witness bias or attacking credibility, and evidence that may tend to directly exculpate
the accused by showing that the alleged victim is biased and thus has a motive to lie or the accused by showing that the alleged victim is biased and thus has a motive to lie or
fabricate is admissible at trial. Commonwealth v. Guy, 686 A.2d 397, 401 (1996). In fabricate is admissible at trial. Commonwealth v. Guy, 686 A.2d 397, 401 (1996). In
Guy, the evidence of the victims prior sexual conduct was not relevant to any allegation Guy, the evidence of the victims prior sexual conduct was not relevant to any allegation
Defenses Defenses
of bias or motive, rather was for the only purpose of showing conformity to past conduct; of bias or motive, rather was for the only purpose of showing conformity to past conduct;
as such, the Superior Court held that it was not admissible. Id. at 402. as such, the Superior Court held that it was not admissible. Id. at 402.
B. Confrontation Clause Challenges B. Confrontation Clause Challenges
There are circumstances when the application of a states rape shield law, There are circumstances when the application of a states rape shield law,
to restrict a cross-examination of a complainants prior sexual conduct, implicates to restrict a cross-examination of a complainants prior sexual conduct, implicates
federal habeas corpus review. Federal habeas corpus review is authorized under the federal habeas corpus review. Federal habeas corpus review is authorized under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110
Stat. 1214, codified at 28 U.S.C.A. 2254 et seq.12 Under AEDPA, the federal court will Stat. 1214, codified at 28 U.S.C.A. 2254 et seq.12 Under AEDPA, the federal court will
review the last state court decision adjudicated on the merits to determine whether that review the last state court decision adjudicated on the merits to determine whether that
decision was contrary to, or involved an unreasonable application of, clearly established decision was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States, or was based on Federal law, as determined by the Supreme Court of the United States, or was based on
an unreasonable determination of the facts. 28 U.S.C. 2254(d)(1)-(2). See Nevada v. an unreasonable determination of the facts. 28 U.S.C. 2254(d)(1)-(2). See Nevada v.
Jackson, --- U.S. ---, 133 S.Ct. 1990, 1992, 186 L.Ed.2d 62 (2013). There must be a prior Jackson, --- U.S. ---, 133 S.Ct. 1990, 1992, 186 L.Ed.2d 62 (2013). There must be a prior
exhaustion of state remedies. 28 U.S.C.A. 2254(b)(1)(A). exhaustion of state remedies. 28 U.S.C.A. 2254(b)(1)(A).
The United States Supreme Court has declared cross-examination an essential The United States Supreme Court has declared cross-examination an essential
constitutional right for a fair trial, subject to reasonable limits reflecting concerns such constitutional right for a fair trial, subject to reasonable limits reflecting concerns such
as prejudice, confusion or delay incident to marginally relevant evidence. Delaware v. as prejudice, confusion or delay incident to marginally relevant evidence. Delaware v.
Van Arsdall, 475 U.S. 673, 678-679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Van Arsdall, 475 U.S. 673, 678-679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).
However, a defendants Sixth Amendment right to present a complete defense However, a defendants Sixth Amendment right to present a complete defense
is not absolute. See Michigan v. Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743, 1746 114 is not absolute. See Michigan v. Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743, 1746 114
L.Ed.2d 205 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 205 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97
L.Ed.2d 37 (1987)). Numerous federal cases have held that rape shield laws support L.Ed.2d 37 (1987)). Numerous federal cases have held that rape shield laws support
legitimate state interest. In Michigan v. Lucas, the United States Supreme Court noted legitimate state interest. In Michigan v. Lucas, the United States Supreme Court noted
that Michigans rape shield statue represents a valid legislative determination that rape that Michigans rape shield statue represents a valid legislative determination that rape
victims deserve heightened protection against surprise, harassment, and unnecessary victims deserve heightened protection against surprise, harassment, and unnecessary
invasions of privacy. 500 U.S. at 150, 111 S.Ct. at 1746-1747. See also, Gagne v. Booker, invasions of privacy. 500 U.S. at 150, 111 S.Ct. at 1746-1747. See also, Gagne v. Booker,
680 F.3d 493, 510 (6th Cir. 2012), cert. denied, 133 S.Ct. 481, 184 L.Ed.2d 302 (2012). 680 F.3d 493, 510 (6th Cir. 2012), cert. denied, 133 S.Ct. 481, 184 L.Ed.2d 302 (2012).
State courts are required to balance the state interest in enforcing their rape State courts are required to balance the state interest in enforcing their rape
shield laws against the defense interest in putting forth a complete defense. Michigan v. shield laws against the defense interest in putting forth a complete defense. Michigan v.
Lucas, 500 U.S. at 152-153, 111 S.Ct. at 1748. Lucas, 500 U.S. at 152-153, 111 S.Ct. at 1748.
This standard calls for a balancing of interests depending on the circumstances This standard calls for a balancing of interests depending on the circumstances
of the case. Factors that the Supreme Court has deemed relevant are the importance of of the case. Factors that the Supreme Court has deemed relevant are the importance of
the evidence to an effective defense, Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, the evidence to an effective defense, Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105,
39 L.Ed.2d 347 (1974); the scope of the ban involved, Delaware v. Van Arsdall, 475 39 L.Ed.2d 347 (1974); the scope of the ban involved, Delaware v. Van Arsdall, 475
U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986); and the legitimacy of state U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986); and the legitimacy of state
interests weighing against admission of the evidence, Chambers v. Mississippi, 410 U.S. interests weighing against admission of the evidence, Chambers v. Mississippi, 410 U.S.
284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973). See generally, White v. Coplan, 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973). See generally, White v. Coplan,
12 28 U.S.C.A. 2254(a) provides that the federal courts shall entertain an application for a writ of habeas corpus on behalf of a person 12 28 U.S.C.A. 2254(a) provides that the federal courts shall entertain an application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws . . . in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws . . .
of the United States. of the United States.
Defenses Defenses
399 F.3d 18 (1st Cir. 2005), cert. denied, 546 U.S. 972, 126 S.Ct. 478, 163 L.Ed.2d 384 399 F.3d 18 (1st Cir. 2005), cert. denied, 546 U.S. 972, 126 S.Ct. 478, 163 L.Ed.2d 384
(2005). (2005).
As stated above, a federal habeas court may not issue the writ simply because As stated above, a federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the relevant state-court decision that court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly. Rather, the federal applied clearly established federal law erroneously or incorrectly. Rather, the federal
court must conclude that the application must be unreasonable. Williams v. Taylor, court must conclude that the application must be unreasonable. Williams v. Taylor,
529 U.S. 362, 411, 120 S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000). In other words, 529 U.S. 362, 411, 120 S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000). In other words,
federal habeas relief is available only if the state courts application of federal law is so federal habeas relief is available only if the state courts application of federal law is so
erroneous that there is no possibility fair-minded jurists could disagree that the state erroneous that there is no possibility fair-minded jurists could disagree that the state
courts decision conflicts with this Courts precedents. Nevada v. Jackson, --- U.S. ---, courts decision conflicts with this Courts precedents. Nevada v. Jackson, --- U.S. ---,
133 S.Ct. 1990, 1992, 186 L.Ed.2d 62 (2013). 133 S.Ct. 1990, 1992, 186 L.Ed.2d 62 (2013).
Another example of this line of scrutiny, i.e., whether the state courts decision Another example of this line of scrutiny, i.e., whether the state courts decision
is unreasonable is Hammer v. Karlen, 342 F.3d 807 (7th Cir. 2003). In Hammer, the is unreasonable is Hammer v. Karlen, 342 F.3d 807 (7th Cir. 2003). In Hammer, the
defendant was charged with improperly touching three young boys while they were defendant was charged with improperly touching three young boys while they were
sleeping. Hammer allegedly fondled the boys penises. The trial court prohibited defense sleeping. Hammer allegedly fondled the boys penises. The trial court prohibited defense
counsel from cross-examining the victims about sexual horseplay they may have engaged counsel from cross-examining the victims about sexual horseplay they may have engaged
in the day before. The defense contended that the evidence showed a motive or pattern in the day before. The defense contended that the evidence showed a motive or pattern
of conduct linked in time to the alleged assault. Eventually, the Wisconsin Supreme Court of conduct linked in time to the alleged assault. Eventually, the Wisconsin Supreme Court
found that the states rape shield statute was properly invoked to exclude the evidence of found that the states rape shield statute was properly invoked to exclude the evidence of
the victims alleged prior sexual conduct. The state court determined that the evidence the victims alleged prior sexual conduct. The state court determined that the evidence
Hammer wished to present was not highly relevant and that his interest in presenting it Hammer wished to present was not highly relevant and that his interest in presenting it
was outweighed by the States interest in protecting the privacy of sexual assault victims was outweighed by the States interest in protecting the privacy of sexual assault victims
under Wisconsins rape shield law. In reviewing this decision, the Seventh Circuit Court under Wisconsins rape shield law. In reviewing this decision, the Seventh Circuit Court
of Appeals said that for a petitioner to obtain relief, the state court must not only have of Appeals said that for a petitioner to obtain relief, the state court must not only have
reached an incorrect result, but a truly unreasonable one.... Thus, if the state courts reached an incorrect result, but a truly unreasonable one.... Thus, if the state courts
decision is at least minimally consistent with the facts and circumstances of the case, decision is at least minimally consistent with the facts and circumstances of the case,
the federal court is powerless to grant relief. Hammer, 342 F.3d at 810. the federal court is powerless to grant relief. Hammer, 342 F.3d at 810.
See 71 A.L.R. 4th 469 (1989), Impeachment or cross-examination of prosecuting See 71 A.L.R. 4th 469 (1989), Impeachment or cross-examination of prosecuting
witness in sexual offense trial by showing that similar charges were made against other witness in sexual offense trial by showing that similar charges were made against other
persons. persons.
C. Impeachment Based Upon Prior False Accusations C. Impeachment Based Upon Prior False Accusations
Many courts hold that proof that the complainant made a prior false accusation Many courts hold that proof that the complainant made a prior false accusation
of sexual assault is relevant to a determination of credibility. However, the Pennsylvania of sexual assault is relevant to a determination of credibility. However, the Pennsylvania
Superior Court, in Commonwealth v. Gaddis, 639 A.2d 462, 466 (Pa. Super. 1994), Superior Court, in Commonwealth v. Gaddis, 639 A.2d 462, 466 (Pa. Super. 1994),
appeal denied, 538 Pa. 665, 649 A.2d 668 (1994), held that the evidence of prior false appeal denied, 538 Pa. 665, 649 A.2d 668 (1994), held that the evidence of prior false
accusations must be tied into a defense of bias or hostility toward the defendant or that accusations must be tied into a defense of bias or hostility toward the defendant or that
the victim had a motive: the victim had a motive:
Although this court also has held that the Rape Shield Law may Although this court also has held that the Rape Shield Law may
not be used to exclude relevant evidence attacking credibility not be used to exclude relevant evidence attacking credibility
Defenses Defenses
or showing a witness bias, Commonwealth v. Black, 3337 Pa. or showing a witness bias, Commonwealth v. Black, 3337 Pa.
Super. 548, 487 A.2d 396 (1985), subsequent decisions have Super. 548, 487 A.2d 396 (1985), subsequent decisions have
applied the holding in Black quite narrowly, and only where applied the holding in Black quite narrowly, and only where
the victims credibility was allegedly affected by bias against or the victims credibility was allegedly affected by bias against or
hostility toward the defendant, or the victim had a motive to seek hostility toward the defendant, or the victim had a motive to seek
retribution. Commonwealth v. Boyles, 407 Pa. Super. 343, 354, retribution. Commonwealth v. Boyles, 407 Pa. Super. 343, 354,
595 A.2d 1180, 1186 (1991). 595 A.2d 1180, 1186 (1991).
639 A.2d at 466. 639 A.2d at 466.
The federal courts have been sensitive to the contention that the defense was The federal courts have been sensitive to the contention that the defense was
prohibited from cross-examining the complainant about a prior false accusation of prohibited from cross-examining the complainant about a prior false accusation of
sexual assault. In Quinn v. Haynes, 234 F.3d 837 (4th Cir. 2000), cert. denied, 532 U.S. sexual assault. In Quinn v. Haynes, 234 F.3d 837 (4th Cir. 2000), cert. denied, 532 U.S.
1024, 121 S.Ct. 1968, 149 L.Ed.2d 762 (2001), the defendant was accused of sexual 1024, 121 S.Ct. 1968, 149 L.Ed.2d 762 (2001), the defendant was accused of sexual
assault by a child. The state trial court prohibited defense counsel from cross-examining assault by a child. The state trial court prohibited defense counsel from cross-examining
the youthful victim about her statements that she had been previously sexually abused the youthful victim about her statements that she had been previously sexually abused
by persons other than the defendant. The defendants only way to show the falsity of the by persons other than the defendant. The defendants only way to show the falsity of the
statements was by denials by those previously accused. The defendants sole purpose statements was by denials by those previously accused. The defendants sole purpose
was to demonstrate that the victims allegations against the others were false, and thus, was to demonstrate that the victims allegations against the others were false, and thus,
constituted evidence that she was also lying about him. Although the Circuit Court in constituted evidence that she was also lying about him. Although the Circuit Court in
Quinn found the state supreme courts exclusion of the proffered impeachment evidence Quinn found the state supreme courts exclusion of the proffered impeachment evidence
neither arbitrary nor disproportionate to the States legitimate interests underlying neither arbitrary nor disproportionate to the States legitimate interests underlying
its implementation of its rape shield law . . ., Id. at 851, the door has been opened to its implementation of its rape shield law . . ., Id. at 851, the door has been opened to
presentation of evidence tending to show falsity without regard to motive or bias. presentation of evidence tending to show falsity without regard to motive or bias.
In White v. Coplan, 399 F.3d 18 (1st Cir. 2005), cert. denied, 546 U.S. 972, 126 In White v. Coplan, 399 F.3d 18 (1st Cir. 2005), cert. denied, 546 U.S. 972, 126
S.Ct. 478, 163 L.Ed.2d 384 (2005), the First Circuit, in a case of sexual violence, reviewed S.Ct. 478, 163 L.Ed.2d 384 (2005), the First Circuit, in a case of sexual violence, reviewed
a trial courts decision to prohibit the defendant from offering evidence that his alleged a trial courts decision to prohibit the defendant from offering evidence that his alleged
victim had previously made similar accusations against other persons. The First Circuit victim had previously made similar accusations against other persons. The First Circuit
found a violation of the defendants Sixth Amendment rights when he was prevented found a violation of the defendants Sixth Amendment rights when he was prevented
from cross-examining the young children about three prior accusations of sexual from cross-examining the young children about three prior accusations of sexual
abuse they had made against other people. Id. at 21. It recognized that the defendants abuse they had made against other people. Id. at 21. It recognized that the defendants
Sixth Amendment confrontation right had been contravened at trial, because the state Sixth Amendment confrontation right had been contravened at trial, because the state
courts failure to admit the excluded evidence was an unreasonable application of the courts failure to admit the excluded evidence was an unreasonable application of the
controlling Rock-Lucas Principle. Id. at 25. controlling Rock-Lucas Principle. Id. at 25.
Other federal courts have reached similar conclusions when evidence of a Other federal courts have reached similar conclusions when evidence of a
prior false allegation was prohibited through application of the state rape shield rule prior false allegation was prohibited through application of the state rape shield rule
when there are facts that make the prior false accusation particularly relevant toward when there are facts that make the prior false accusation particularly relevant toward
discrediting a critical witness. See, e.g., Averilla v. Lopez, 862 F.Supp.2d 987 (N.D.Cal. discrediting a critical witness. See, e.g., Averilla v. Lopez, 862 F.Supp.2d 987 (N.D.Cal.
2012). 2012).
See 71 A.L.R. 4th 469 (1989)(Impeachment or cross-examination of prosecuting See 71 A.L.R. 4th 469 (1989)(Impeachment or cross-examination of prosecuting
witness in sexual offense trial by showing that similar charges were made against other witness in sexual offense trial by showing that similar charges were made against other
persons). persons).
Defenses Defenses
5.6 IMPOSSIBILITY DEFENSE 5.6 IMPOSSIBILITY DEFENSE
A. Abrogation A. Abrogation
Section 901(b) of the Crimes Code abrogates the defenses of factual and legal Section 901(b) of the Crimes Code abrogates the defenses of factual and legal
impossibility for attempt offenses.13 Commonwealth v. Henley, 504 Pa. 408, 415, 474 impossibility for attempt offenses.13 Commonwealth v. Henley, 504 Pa. 408, 415, 474
A.2d 1115, 1118 (1984). A.2d 1115, 1118 (1984).
B. Factual impossibility B. Factual impossibility
Impossibility defenses are usually classified as either legal or factual in nature. Impossibility defenses are usually classified as either legal or factual in nature.
Commonwealth v. Ohle, 503 Pa. 566, 586, 470 A.2d 61, 72 (1983). Commonwealth v. Ohle, 503 Pa. 566, 586, 470 A.2d 61, 72 (1983).
Factual impossibility denotes conduct where the objective is proscribed by the Factual impossibility denotes conduct where the objective is proscribed by the
criminal law but a circumstance unknown to the actor prevents him from bringing it criminal law but a circumstance unknown to the actor prevents him from bringing it
about. The classic example is the thief who picks an empty pocket Commonwealth v. about. The classic example is the thief who picks an empty pocket Commonwealth v.
Henley, 504 Pa. 408, 410-411, 474 A.2d 1115, 1116 (1984)(quoting United States v. Henley, 504 Pa. 408, 410-411, 474 A.2d 1115, 1116 (1984)(quoting United States v.
Conway, 507 F.2d 1047, 1050 (5th Cir. 1975)). Conway, 507 F.2d 1047, 1050 (5th Cir. 1975)).
Factual impossibility is not an available defense under the Pennsylvania Crimes Factual impossibility is not an available defense under the Pennsylvania Crimes
Code for inchoate crimes such as criminal attempt, solicitation or conspiracy. See e.g., Code for inchoate crimes such as criminal attempt, solicitation or conspiracy. See e.g.,
18 Pa.Cons.Stat.Ann. 901; Commonwealth v. Timer, 609 A.2d 572, 575 (Pa. Super. 18 Pa.Cons.Stat.Ann. 901; Commonwealth v. Timer, 609 A.2d 572, 575 (Pa. Super.
1992) (conviction for conspiracy to purchase and/or possess methamphetamine upheld 1992) (conviction for conspiracy to purchase and/or possess methamphetamine upheld
even though a sale never took place and was never going to take place because the even though a sale never took place and was never going to take place because the
undercover officers posing as suppliers had no intention of actually providing the drug); undercover officers posing as suppliers had no intention of actually providing the drug);
Commonwealth v. John, 854 A.2d 591, 597 (Pa. Super. 2004)([T]he fact that the person Commonwealth v. John, 854 A.2d 591, 597 (Pa. Super. 2004)([T]he fact that the person
appellant solicited was not a 13 year old girl, as he believed, affords him no defense.). appellant solicited was not a 13 year old girl, as he believed, affords him no defense.).
C. Impotence or Other Type of Inability C. Impotence or Other Type of Inability
Impotence or another type of physical/medical incapacity, while often mistaken Impotence or another type of physical/medical incapacity, while often mistaken
for an impossibility defense, is rather a relevant factual issue intended to call the for an impossibility defense, is rather a relevant factual issue intended to call the
complainants testimony into issue. If properly raised and supported by the evidence, it complainants testimony into issue. If properly raised and supported by the evidence, it
may be used to question the veracity of the complainant. may be used to question the veracity of the complainant.
The defendant is permitted to raise impotence as a defense if his physical The defendant is permitted to raise impotence as a defense if his physical
incapacity can be shown to exist, either a permanent or temporary inability, at the time incapacity can be shown to exist, either a permanent or temporary inability, at the time
of the alleged assault. This is an issue for the finder of fact, which of course will be of the alleged assault. This is an issue for the finder of fact, which of course will be
assisted by medical or some other type of expert testimony. A Pennsylvania case that assisted by medical or some other type of expert testimony. A Pennsylvania case that
was close to this type of defense was Commonwealth v. Ramstedt, 173 A. 772 (Pa. Super. was close to this type of defense was Commonwealth v. Ramstedt, 173 A. 772 (Pa. Super.
1934), in which the defendant, a man of seventy years of age, tried to show that he could 1934), in which the defendant, a man of seventy years of age, tried to show that he could
not have raped and impregnated a sixteen year old girl by presenting two physicians not have raped and impregnated a sixteen year old girl by presenting two physicians
who testified that there was no live spermatozoa in his seminal fluid. The jury found who testified that there was no live spermatozoa in his seminal fluid. The jury found
13 (b) Impossibility.--It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would 13 (b) Impossibility.--It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would
have been impossible for the accused to commit the crime attempted. 18 Pa.Cons.stat.ann. 901(b). have been impossible for the accused to commit the crime attempted. 18 Pa.Cons.stat.ann. 901(b).
Defenses Defenses
against the defendant; the doctors were not able to specifically say that he lacked the against the defendant; the doctors were not able to specifically say that he lacked the
live spermatozoa at the relevant time period. Id. at 773. See also, 23 A.L.R. 3d 1351 live spermatozoa at the relevant time period. Id. at 773. See also, 23 A.L.R. 3d 1351
(1969) Impotency as defense to charge of rape; 8 SPP 49:92, Scientific and Technological (1969) Impotency as defense to charge of rape; 8 SPP 49:92, Scientific and Technological
Matters; Application of Natural Laws. Matters; Application of Natural Laws.
In Commonwealth v. Barger, 956 A.2d 458 (Pa. Super. 2008), appeal denied, 602 In Commonwealth v. Barger, 956 A.2d 458 (Pa. Super. 2008), appeal denied, 602
Pa. 655, 980 A.2d 109 (2009), the defendant raised the defense, in a rape case in which Pa. 655, 980 A.2d 109 (2009), the defendant raised the defense, in a rape case in which
the alleged victim, E.G., was his 13 year-old niece, that: the alleged victim, E.G., was his 13 year-old niece, that:
he was impotent and required the use of a mechanical device to he was impotent and required the use of a mechanical device to
engage in sexual intercourse. According to Appellant, he kept the engage in sexual intercourse. According to Appellant, he kept the
device at home and never took it to E.G.s home. device at home and never took it to E.G.s home.
956 A.2d at 460. He was acquitted of all of the sexual violence charges in an apparent 956 A.2d at 460. He was acquitted of all of the sexual violence charges in an apparent
decision by the jury to disbelieve the victim. Id. at 464. decision by the jury to disbelieve the victim. Id. at 464.
D. Legal Impossibility D. Legal Impossibility
Legal impossibility occurs where the intended acts would not amount to a crime Legal impossibility occurs where the intended acts would not amount to a crime
even if completed. Commonwealth v. Henley, 504 Pa. 408, 411, 474 A.2d 1115, 1116 even if completed. Commonwealth v. Henley, 504 Pa. 408, 411, 474 A.2d 1115, 1116
(1984). Our Supreme Court cited a New York case for an example of legal impossibility: (1984). Our Supreme Court cited a New York case for an example of legal impossibility:
A frequently cited case standing for this proposition is People A frequently cited case standing for this proposition is People
v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906). The Jaffe Court held v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906). The Jaffe Court held
that where an element of the completed crime required the that where an element of the completed crime required the
goods be stolen, the fact that the goods were not stolen was goods be stolen, the fact that the goods were not stolen was
a defense to the completed act. Consequently, an attempt to a defense to the completed act. Consequently, an attempt to
do an act which would not be criminal if completed could not do an act which would not be criminal if completed could not
itself be criminal regardless of the actors intent. itself be criminal regardless of the actors intent.
Henley, 504 Pa. at 411, 474 A.2d at 116. However, it is clear that Section 901(b) of the Henley, 504 Pa. at 411, 474 A.2d at 116. However, it is clear that Section 901(b) of the
Crimes Code abrogates the defenses of factual and legal impossibility to attempt crimes. Crimes Code abrogates the defenses of factual and legal impossibility to attempt crimes.
Id. at 415, 474 A.2d at 1118. Id. at 415, 474 A.2d at 1118.
5.7 INSANITY DEFENSE 5.7 INSANITY DEFENSE
A. Availability A. Availability
The insanity defense is only available to those defendants who come within the The insanity defense is only available to those defendants who come within the
purview of Pennsylvanias legal test for insanity. The insanity defense is not available purview of Pennsylvanias legal test for insanity. The insanity defense is not available
simply because the defendant has a mental illness. The defense of insanity is a legal simply because the defendant has a mental illness. The defense of insanity is a legal
creature, not a medical or psychological determination although proof thereof routinely creature, not a medical or psychological determination although proof thereof routinely
plays an important role. plays an important role.
Defenses Defenses
Section 315 of the Crimes Code provides the general rule that: Section 315 of the Crimes Code provides the general rule that:
The mental soundness of an actor engaged in conduct charged The mental soundness of an actor engaged in conduct charged
to constitute an offense shall only be a defense to the charged to constitute an offense shall only be a defense to the charged
offense when the actor proves by a preponderance of evidence offense when the actor proves by a preponderance of evidence
that the actor was legally insane at the time of the commission that the actor was legally insane at the time of the commission
of the offense. of the offense.
18 Pa.Cons.Stat.Ann. 315(a). Section 315(b) further provides that 18 Pa.Cons.Stat.Ann. 315(a). Section 315(b) further provides that
[l]egally insane means that, at the time of the commission [l]egally insane means that, at the time of the commission
of the offense, the actor was laboring under such a defect of of the offense, the actor was laboring under such a defect of
reason, from disease of the mind, as not to know the nature reason, from disease of the mind, as not to know the nature
and quality of the act he was doing or, if the actor did know the and quality of the act he was doing or, if the actor did know the
quality of the act, that he did not know that what he was doing quality of the act, that he did not know that what he was doing
was wrong. was wrong.
Section 315 is a codification of the MNaghten14 test for insanity. See Section 315 is a codification of the MNaghten14 test for insanity. See
Commonwealth v. Rabold, 597 Pa. 344, 348 n.1, 951 A.2d 329, 331 n. 1 (2008). Commonwealth v. Rabold, 597 Pa. 344, 348 n.1, 951 A.2d 329, 331 n. 1 (2008).
Accordingly, [u]nder MNaghten, a defendant is legally insane and absolved of criminal Accordingly, [u]nder MNaghten, a defendant is legally insane and absolved of criminal
responsibility if, at the time of committing the act, due to a defect of reason or disease of responsibility if, at the time of committing the act, due to a defect of reason or disease of
mind, the accused either did not know the nature and quality of the act or did not know mind, the accused either did not know the nature and quality of the act or did not know
that the act was wrong. Commonwealth v. Heidnik, 526 Pa. 458, 466, 587 A.2d 687, that the act was wrong. Commonwealth v. Heidnik, 526 Pa. 458, 466, 587 A.2d 687,
690 (1991). 690 (1991).
It has long been accepted that criminal defendants may be presumed sane It has long been accepted that criminal defendants may be presumed sane
for purposes of determining their criminal liability. Thus, under the clear language of for purposes of determining their criminal liability. Thus, under the clear language of
section 315(a), the burden of proving insanity by a preponderance of the evidence is section 315(a), the burden of proving insanity by a preponderance of the evidence is
upon the defendant. Commonwealth v. Yasipour, 957 A.2d 734, 738-739 (Pa. Super. upon the defendant. Commonwealth v. Yasipour, 957 A.2d 734, 738-739 (Pa. Super.
2008)(citations omitted), appeal denied, 602 Pa. 658, 980 A.2d 111 (2009). 2008)(citations omitted), appeal denied, 602 Pa. 658, 980 A.2d 111 (2009).
Section 315 of the Crimes Code specifically places the burden of proof on the Section 315 of the Crimes Code specifically places the burden of proof on the
defendant: defendant:
The mental soundness of an actor engaged in conduct charged The mental soundness of an actor engaged in conduct charged
to constitute an offense shall only be a defense to the charged to constitute an offense shall only be a defense to the charged
offense when the actor proves by a preponderance of evidence offense when the actor proves by a preponderance of evidence
that the actor was legally insane at the time of the commission of that the actor was legally insane at the time of the commission of
18 Pa.Cons.Stat.Ann. 315(a) (emphasis added). See also Commonwealth v. Heidnik, 18 Pa.Cons.Stat.Ann. 315(a) (emphasis added). See also Commonwealth v. Heidnik,
526 Pa. 458, 466, 587 A.2d 687, 691 (1991); Commonwealth v. Mitchell, 576 Pa. 258, 526 Pa. 458, 466, 587 A.2d 687, 691 (1991); Commonwealth v. Mitchell, 576 Pa. 258,
274, n.8, 839 A.2d 202, 211 n.8 (2003). 274, n.8, 839 A.2d 202, 211 n.8 (2003).
14 Regina v. MNaghten, 10 Cl. & Fin. 200, 8 Eng.Rep. 718 (1843). 14 Regina v. MNaghten, 10 Cl. & Fin. 200, 8 Eng.Rep. 718 (1843).
Defenses Defenses
The Pennsylvania Supreme Court in Commonwealth v. Reilly, 519 Pa. 550, 549 The Pennsylvania Supreme Court in Commonwealth v. Reilly, 519 Pa. 550, 549
A.2d 503 (1988), explained that A.2d 503 (1988), explained that
[i]n order for appellants attack upon section 315 to succeed, [i]n order for appellants attack upon section 315 to succeed,
she must show that insanity negates the mens rea element of the she must show that insanity negates the mens rea element of the
offense charged. Although the burden is upon the Commonwealth offense charged. Although the burden is upon the Commonwealth
to prove every element of its case, the Commonwealth is not to prove every element of its case, the Commonwealth is not
required to prove facts which would counteract any justification required to prove facts which would counteract any justification
or excuse the defendant may have had for the commission of the or excuse the defendant may have had for the commission of the
crime. Proof of facts which exonerate the accused from his guilt crime. Proof of facts which exonerate the accused from his guilt
remain solely the province of the criminal defendant. remain solely the province of the criminal defendant.
Id., 519 Pa. at 564, 549 A.2d at 510 (internal citations omitted). Id., 519 Pa. at 564, 549 A.2d at 510 (internal citations omitted).
C. MNaghten Test C. MNaghten Test
To establish insanity under MNaghten a defendant must establish, by a To establish insanity under MNaghten a defendant must establish, by a
preponderance of the evidence, one of the following two tests: (1) at the time he or she preponderance of the evidence, one of the following two tests: (1) at the time he or she
committed the act, the defendant did not know the nature and quality of the act or (2) committed the act, the defendant did not know the nature and quality of the act or (2)
the defendant did not know that it was wrong. The nature of an act is that it is right or the defendant did not know that it was wrong. The nature of an act is that it is right or
wrong. The quality of an act is that it is likely to cause death or injury. Commonwealth v. wrong. The quality of an act is that it is likely to cause death or injury. Commonwealth v.
Young, 524 Pa. 373, 391, 572 A.2d 1217, 1226 (1989), cert denied, 511 U.S. 1012 (1994). Young, 524 Pa. 373, 391, 572 A.2d 1217, 1226 (1989), cert denied, 511 U.S. 1012 (1994).
The decision of the defendants sanity is entirely within the discretion of the jury. The decision of the defendants sanity is entirely within the discretion of the jury.
Commonwealth v. Holley, 945 A.2d 241, 249 (Pa. Super. 2008), appeal denied, 598 Pa. Commonwealth v. Holley, 945 A.2d 241, 249 (Pa. Super. 2008), appeal denied, 598 Pa.
787, 959 A.2d 928 (2008); Commonwealth v. Zewe, 663 A.2d 195, 198 (Pa. Super. 1995), 787, 959 A.2d 928 (2008); Commonwealth v. Zewe, 663 A.2d 195, 198 (Pa. Super. 1995),
appeal denied, 544 Pa. 629, 675 A.2d 1248 (1996). Furthermore, the Commonwealth appeal denied, 544 Pa. 629, 675 A.2d 1248 (1996). Furthermore, the Commonwealth
can establish a defendants sanity solely by lay witnesses even where a defendant has can establish a defendants sanity solely by lay witnesses even where a defendant has
offered expert testimony as to his lack of sanity. Commonwealth v. Young, 276 Pa. offered expert testimony as to his lack of sanity. Commonwealth v. Young, 276 Pa.
409, 416, 419 A.2d 523, 526-527 (1980). The Commonwealth may meet its burden 409, 416, 419 A.2d 523, 526-527 (1980). The Commonwealth may meet its burden
by testimony concerning the defendants actions, conversations, and statements at the by testimony concerning the defendants actions, conversations, and statements at the
time of the crimes from which the jury can infer that he knew what he was doing when time of the crimes from which the jury can infer that he knew what he was doing when
he committed the crimes and that he knew that his actions were wrong. Id., 276 Pa. at he committed the crimes and that he knew that his actions were wrong. Id., 276 Pa. at
418, 419 A.2d at 527. 418, 419 A.2d at 527.
D. Irresistible Impulse D. Irresistible Impulse
The doctrine of irresistible impulse or in the modern psychiatric vernacular The doctrine of irresistible impulse or in the modern psychiatric vernacular
inability to control ones self, whether used to denote legal insanity, or as a device to inability to control ones self, whether used to denote legal insanity, or as a device to
escape criminal responsibility for ones acts or to reduce the crime or its degree, has escape criminal responsibility for ones acts or to reduce the crime or its degree, has
always been rejected in Pennsylvania. Commonwealth v. Kuzmanko, 709 A.2d 392, always been rejected in Pennsylvania. Commonwealth v. Kuzmanko, 709 A.2d 392,
398 (Pa. Super. 1998), appeal denied, 556 Pa. 705, 729 A.2d 1126 (1998) (quoting 398 (Pa. Super. 1998), appeal denied, 556 Pa. 705, 729 A.2d 1126 (1998) (quoting
Commonwealth v. Zettlemoyer, 500 Pa. 16, 34, 454 A.2d 937, 946, cert denied, 461 Commonwealth v. Zettlemoyer, 500 Pa. 16, 34, 454 A.2d 937, 946, cert denied, 461
U.S. 970 (1983)). Accordingly, irresistible impulse is no defense to a criminal charge in U.S. 970 (1983)). Accordingly, irresistible impulse is no defense to a criminal charge in
Defenses Defenses
E. Diminished Capacity E. Diminished Capacity
The defense of diminished capacity will be available in a case involving a crime The defense of diminished capacity will be available in a case involving a crime
of sexual violence only if murder in the first degree is also charged. This discussion of sexual violence only if murder in the first degree is also charged. This discussion
is provided because there are a number of reported cases dealing with rape or IDSI is provided because there are a number of reported cases dealing with rape or IDSI
which also address first degree murder charges. The diminished capacity defense is not which also address first degree murder charges. The diminished capacity defense is not
available to crimes other than murder in the first degree; it is not available for a charge available to crimes other than murder in the first degree; it is not available for a charge
of a sex crime. of a sex crime.
The diminished capacity defense seeks to negative the intent element of a charge The diminished capacity defense seeks to negative the intent element of a charge
of first degree murder, thereby reducing it to murder of the third degree. Commonwealth of first degree murder, thereby reducing it to murder of the third degree. Commonwealth
v. Taylor, 583 Pa. 170, 186, 876 A.2d 916, 926 (2005). The Pennsylvania Supreme Court v. Taylor, 583 Pa. 170, 186, 876 A.2d 916, 926 (2005). The Pennsylvania Supreme Court
has observed that a defendant offering evidence of a diminished capacity concedes has observed that a defendant offering evidence of a diminished capacity concedes
general criminal liability. The thrust of this doctrine is to challenge the capacity of the general criminal liability. The thrust of this doctrine is to challenge the capacity of the
actor to possess a particular state of mind . . . Thus, in a first degree murder in which the actor to possess a particular state of mind . . . Thus, in a first degree murder in which the
defendant offers the defense of diminished capacity, he is attempting to prove that he defendant offers the defense of diminished capacity, he is attempting to prove that he
was incapable of forming the specific intent to kill, a requirement of first degree murder. was incapable of forming the specific intent to kill, a requirement of first degree murder.
Commonwealth v. Walzack, 468 Pa. 210, 220, 360 A.2d 914, 919-920 (1976). Commonwealth v. Walzack, 468 Pa. 210, 220, 360 A.2d 914, 919-920 (1976).
Diminished capacity is an extremely limited defense. Id., 583 Pa. at 187, 876 Diminished capacity is an extremely limited defense. Id., 583 Pa. at 187, 876
A.2d at 926; Commonwealth v. Singley, 582 Pa. 5, 21 n.10, 868 A.2d 403, 412 n.10 A.2d at 926; Commonwealth v. Singley, 582 Pa. 5, 21 n.10, 868 A.2d 403, 412 n.10
(2005), cert. denied, 546 U.S. 1021, 126 S.Ct. 663, 163 L.Ed.2d 536 (2005). In asserting (2005), cert. denied, 546 U.S. 1021, 126 S.Ct. 663, 163 L.Ed.2d 536 (2005). In asserting
a diminished capacity defense, a defendant is attempting to prove that he was incapable a diminished capacity defense, a defendant is attempting to prove that he was incapable
of forming the specific intent to kill; if the defendant is successful, first degree murder is of forming the specific intent to kill; if the defendant is successful, first degree murder is
mitigated to third degree. Commonwealth v. Travaglia, 541 Pa. 108, 124 n.10, 661 A.2d mitigated to third degree. Commonwealth v. Travaglia, 541 Pa. 108, 124 n.10, 661 A.2d
352, 359 n.10 (1995), cert denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996). 352, 359 n.10 (1995), cert denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996).
Accordingly, diminished capacity may not be applied to crimes other than murder of the Accordingly, diminished capacity may not be applied to crimes other than murder of the
first degree. See Commonwealth v. Swartz, 484 A.2d 793, 796 n.7 (Pa. Super. 1984). first degree. See Commonwealth v. Swartz, 484 A.2d 793, 796 n.7 (Pa. Super. 1984).
If a defendant does not introduce evidence at trial that supports a diminished If a defendant does not introduce evidence at trial that supports a diminished
capacity theory, such as drug use or intoxication which caused him to lose control of his capacity theory, such as drug use or intoxication which caused him to lose control of his
faculties, then he is not entitled to a jury charge on diminished capacity. Commonwealth faculties, then he is not entitled to a jury charge on diminished capacity. Commonwealth
v. Randall, 758 A.2d 669, 683 (Pa. Super. 2000), appeal denied, 563 Pa. 707, 764 A.2d v. Randall, 758 A.2d 669, 683 (Pa. Super. 2000), appeal denied, 563 Pa. 707, 764 A.2d
1067 (2000). 1067 (2000).
F. Guilty But Mentally Ill F. Guilty But Mentally Ill
1. General rule at trial 1. General rule at trial
Section 314 of the Crimes Code provides that Section 314 of the Crimes Code provides that
[a] person who timely offers a defense of insanity in [a] person who timely offers a defense of insanity in
accordance with the Rules of Criminal Procedure may be accordance with the Rules of Criminal Procedure may be
found guilty but mentally ill at trial if the trier of facts finds, found guilty but mentally ill at trial if the trier of facts finds,
beyond a reasonable doubt, that the person is guilty of an beyond a reasonable doubt, that the person is guilty of an
Defenses Defenses
offense, was mentally ill at the time of the commission of offense, was mentally ill at the time of the commission of
the offense and was not legally insane at the time of the the offense and was not legally insane at the time of the
commission of the offense. commission of the offense.
18 Pa.Cons.Stat.Ann. 314(a). Section 314 defines mentally ill as: 18 Pa.Cons.Stat.Ann. 314(a). Section 314 defines mentally ill as:
[o]ne who as a result of mental disease or defect, lacks [o]ne who as a result of mental disease or defect, lacks
substantial capacity either to appreciate the wrongfulness substantial capacity either to appreciate the wrongfulness
of his conduct or to conform his conduct to the requirements of his conduct or to conform his conduct to the requirements
of the law. of the law.
18 Pa.Cons.Stat.Ann. 314(c). A verdict of guilty but mentally ill is not an 18 Pa.Cons.Stat.Ann. 314(c). A verdict of guilty but mentally ill is not an
insanity verdict, as the test for insanity is the MNaghten test. See 18 Pa.Cons. insanity verdict, as the test for insanity is the MNaghten test. See 18 Pa.Cons.
Stat.Ann. 314(d). Section 315 is a codification of the MNaghten test for insanity Stat.Ann. 314(d). Section 315 is a codification of the MNaghten test for insanity
in Pennsylvania. Commonwealth v. Reilly, 519 Pa. 550, 558-559, 549 A.2d 503, in Pennsylvania. Commonwealth v. Reilly, 519 Pa. 550, 558-559, 549 A.2d 503,
507 (1988). 507 (1988).
Neither the defendant nor the Commonwealth is required to prove that Neither the defendant nor the Commonwealth is required to prove that
the defendant was mentally ill at the time of the commission of the offense. the defendant was mentally ill at the time of the commission of the offense.
Commonwealth v. Sohmer, 519 Pa. 200, 212, 546 A.2d 601, 607 (1988). Rather, Commonwealth v. Sohmer, 519 Pa. 200, 212, 546 A.2d 601, 607 (1988). Rather,
the trier of fact assesses the evidence produced as to the mental state of the the trier of fact assesses the evidence produced as to the mental state of the
defendant at the time of the offense whether the fact of his mental illness defendant at the time of the offense whether the fact of his mental illness
preponderates. Id. In other words, when the defendant submits evidence as to preponderates. Id. In other words, when the defendant submits evidence as to
his insanity, but the trier of fact finds that the defendant is not insane under the his insanity, but the trier of fact finds that the defendant is not insane under the
MNaghten standard, the trier of fact may still find the defendant to be guilty MNaghten standard, the trier of fact may still find the defendant to be guilty
but mentally ill. Commonwealth v. Andre, 17 A.3d 951, 960 (Pa. Super. 2011): but mentally ill. Commonwealth v. Andre, 17 A.3d 951, 960 (Pa. Super. 2011):
Accordingly, even if the Commonwealth proves each of the Accordingly, even if the Commonwealth proves each of the
elements of the crimes charged beyond a reasonable doubt elements of the crimes charged beyond a reasonable doubt
and the defendant fails to show by a preponderance of the and the defendant fails to show by a preponderance of the
evidence that he is legally insane, the jury must still consider evidence that he is legally insane, the jury must still consider
whether the defendant was mentally ill at the time of the whether the defendant was mentally ill at the time of the
commission of the act. commission of the act.
Id. at 960. Id. at 960.
Typically, a trial court will instruct the jury on concepts of legal insanity Typically, a trial court will instruct the jury on concepts of legal insanity
and guilty but mentally ill using Pennsylvania Suggested Standard Jury Instruction and guilty but mentally ill using Pennsylvania Suggested Standard Jury Instruction
(Criminal) 5.01A.15 Subdivision 6 provides: (Criminal) 5.01A.15 Subdivision 6 provides:
Guilty but mentally ill becomes a possible verdict when a Guilty but mentally ill becomes a possible verdict when a
defendant offers but fails to prove a legal insanity defense. defendant offers but fails to prove a legal insanity defense.
You may return this verdict if you are satisfied beyond a You may return this verdict if you are satisfied beyond a
15 This instruction has been specifically approved by this court, and correctly sets forth the present state of the law in the Commonwealth. 15 This instruction has been specifically approved by this court, and correctly sets forth the present state of the law in the Commonwealth.
Commonwealth v. duPont, 730 A.2d 970, 980 (Pa. Super. 1999) (citations omitted), appeal denied, 561 Pa. 669, 749 A.2d 466 (2000), Commonwealth v. duPont, 730 A.2d 970, 980 (Pa. Super. 1999) (citations omitted), appeal denied, 561 Pa. 669, 749 A.2d 466 (2000),
cert denied, 530 U.S. 1231, 120 S.Ct. 2663, 147 L.Ed.2d 276 (2000). cert denied, 530 U.S. 1231, 120 S.Ct. 2663, 147 L.Ed.2d 276 (2000).
Defenses Defenses
reasonable doubt that the defendant committed the crime reasonable doubt that the defendant committed the crime
alleged and you are also satisfied by a preponderance of the alleged and you are also satisfied by a preponderance of the
evidence that is, by the greater weight of the evidence evidence that is, by the greater weight of the evidence
that the defendant, although not legally insane, was mentally that the defendant, although not legally insane, was mentally
ill at the time of the crime.16 ill at the time of the crime.16
In accordance with Commonwealth v. Sohmer, 519 Pa. 200, 212, 546 A.2d In accordance with Commonwealth v. Sohmer, 519 Pa. 200, 212, 546 A.2d
601, 607 (1988), the jury, using the evidence offered on the issue of insanity, must 601, 607 (1988), the jury, using the evidence offered on the issue of insanity, must
determine whether the evidence of mental illness preponderates. Conversely, if determine whether the evidence of mental illness preponderates. Conversely, if
a defendant cannot make out an insanity defense as a matter of law or fails to a defendant cannot make out an insanity defense as a matter of law or fails to
present evidence of mental illness, the defendant is not entitled to a guilty but present evidence of mental illness, the defendant is not entitled to a guilty but
mentally ill instruction. See Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d mentally ill instruction. See Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d
28 (1991), cert denied, 503 U.S. 989, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992). 28 (1991), cert denied, 503 U.S. 989, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992).
2. Guilty Plea 2. Guilty Plea
The trial court may accept a plea of guilty but mentally ill only under the The trial court may accept a plea of guilty but mentally ill only under the
following circumstances: following circumstances:
(1) The trial judge has examined all reports prepared including the pre- (1) The trial judge has examined all reports prepared including the pre-
sentence report and any mental health evaluations; sentence report and any mental health evaluations;
(2) The trial judge has held a hearing on the sole issue of the defendants (2) The trial judge has held a hearing on the sole issue of the defendants
mental illness and all parties were permitted to present evidence; and mental illness and all parties were permitted to present evidence; and
(3) The trial judge is satisfied that the defendant was mentally ill at the (3) The trial judge is satisfied that the defendant was mentally ill at the
time of the offense. time of the offense.
18 Pa.Cons.Stat.Ann. 314(b). If the plea is not accepted, then the trial judge 18 Pa.Cons.Stat.Ann. 314(b). If the plea is not accepted, then the trial judge
must not preside at the trial if the defendant subsequently waives his right to a must not preside at the trial if the defendant subsequently waives his right to a
jury trial. Id. jury trial. Id.
3. Sentencing 3. Sentencing
Before imposing sentence, the trial court must hear testimony, and make Before imposing sentence, the trial court must hear testimony, and make
findings, on the issue of whether the defendant is severely mentally disabled findings, on the issue of whether the defendant is severely mentally disabled
and in need of treatment. Defendants who are found to be severely mentally and in need of treatment. Defendants who are found to be severely mentally
disabled and in need of treatment at the time of sentencing must be provided disabled and in need of treatment at the time of sentencing must be provided
with treatment that is psychiatrically or psychologically indicated, consistent with treatment that is psychiatrically or psychologically indicated, consistent
with available resources. with available resources.
Furthermore, although mental illness is clearly a factor that may be Furthermore, although mental illness is clearly a factor that may be
considered at the time of sentencing, a defendant found guilty but mentally ill considered at the time of sentencing, a defendant found guilty but mentally ill
may be sentenced exactly the same way as any other defendant found guilty of may be sentenced exactly the same way as any other defendant found guilty of
the underlying criminal offense. the underlying criminal offense.
16 Pennsylvania Suggested Standard Jury Instruction (Criminal) 5.01A. 16 Pennsylvania Suggested Standard Jury Instruction (Criminal) 5.01A.
Defenses Defenses
42 Pa.Cons.Stat.Ann. 9727(a) provides: 42 Pa.Cons.Stat.Ann. 9727(a) provides:
9727. Disposition of persons found guilty but mentally 9727. Disposition of persons found guilty but mentally
ill ill
(a) Imposition of sentence. -- A defendant found guilty but (a) Imposition of sentence. -- A defendant found guilty but
mentally ill or whose plea of guilty but mentally ill is accepted mentally ill or whose plea of guilty but mentally ill is accepted
under the provisions of 18 Pa.C.S. 314 (relating to guilty under the provisions of 18 Pa.C.S. 314 (relating to guilty
but mentally ill) may have any sentence imposed on him but mentally ill) may have any sentence imposed on him
which may lawfully be imposed on any defendant convicted which may lawfully be imposed on any defendant convicted
of the same offense. Before imposing sentence, the court of the same offense. Before imposing sentence, the court
shall hear testimony and make a finding on the issue of shall hear testimony and make a finding on the issue of
whether the defendant at the time of sentencing is severely whether the defendant at the time of sentencing is severely
mentally disabled and in need of treatment pursuant to the mentally disabled and in need of treatment pursuant to the
provisions of the act of July 9, 1976 (P.L. 817, No. 143), provisions of the act of July 9, 1976 (P.L. 817, No. 143),
known as the Mental Health Procedures Act. 17 known as the Mental Health Procedures Act. 17
In a capital case, which would only involve a crime of sexual violence if In a capital case, which would only involve a crime of sexual violence if
a charge of murder in the first degree is also filed, evidence tending to show a a charge of murder in the first degree is also filed, evidence tending to show a
defendant was guilty but mentally ill is properly admitted only in the penalty defendant was guilty but mentally ill is properly admitted only in the penalty
phase, not the guilt phase. Commonwealth v. Faulkner, 528 Pa. 57, 72, 595 phase, not the guilt phase. Commonwealth v. Faulkner, 528 Pa. 57, 72, 595
A.2d 28, 36-37 (1991), cert denied, 503 U.S. 989, 112 S.Ct. 1680, 118 L.Ed.2d 397 A.2d 28, 36-37 (1991), cert denied, 503 U.S. 989, 112 S.Ct. 1680, 118 L.Ed.2d 397
(1992). (1992).
Additionally, there is no mandatory reduction in sentence because Additionally, there is no mandatory reduction in sentence because
a defendant has been found to suffer from a mental illness but not insane. a defendant has been found to suffer from a mental illness but not insane.
Commonwealth v. Diaz, 867 A.2d 1285, 1287 (Pa. Super. 2005). The only Commonwealth v. Diaz, 867 A.2d 1285, 1287 (Pa. Super. 2005). The only
difference is that the defendant found guilty but mentally ill may be entitled to difference is that the defendant found guilty but mentally ill may be entitled to
treatment. See 42 Pa.Cons.Stat.Ann. 9727(b). treatment. See 42 Pa.Cons.Stat.Ann. 9727(b).
5.8 INTOXICATION 5.8 INTOXICATION
In a crime of sexual violence, the only possible defense based upon intoxication In a crime of sexual violence, the only possible defense based upon intoxication
is involuntary intoxication to show that the defendant lacked the requisite intent to is involuntary intoxication to show that the defendant lacked the requisite intent to
commit the crimes. It has been repeatedly held that a defendant cannot, as a matter commit the crimes. It has been repeatedly held that a defendant cannot, as a matter
of law, be insulated from criminal liability for his actions by claiming a mental state of law, be insulated from criminal liability for his actions by claiming a mental state
resulting from alcohol which was voluntarily ingested. Commonwealth v. Henry, 524 resulting from alcohol which was voluntarily ingested. Commonwealth v. Henry, 524
Pa. 135, 149, 569 A.2d 929, 935 (1990). Pa. 135, 149, 569 A.2d 929, 935 (1990).
However, as will be discussed below, a defendant may be permitted to admit However, as will be discussed below, a defendant may be permitted to admit
evidence of intoxication if the defense is based upon the assertion that the intoxication, evidence of intoxication if the defense is based upon the assertion that the intoxication,
even if voluntarily induced, rendered the defendant unable to perform the act alleged. even if voluntarily induced, rendered the defendant unable to perform the act alleged.
17 42 Pa.Cons.stat.ann. 9727(a). 17 42 Pa.Cons.stat.ann. 9727(a).
Defenses Defenses
A. Voluntary Intoxication A. Voluntary Intoxication
Section 308 of the Crimes Code provides the following: Section 308 of the Crimes Code provides the following:
Neither voluntary intoxication nor voluntary drugged condition Neither voluntary intoxication nor voluntary drugged condition
is a defense to a criminal charge, nor may evidence of such is a defense to a criminal charge, nor may evidence of such
conditions be introduced to negative the element of intent of the conditions be introduced to negative the element of intent of the
offense, except that evidence of such intoxication or drugged offense, except that evidence of such intoxication or drugged
condition of the defendant may be offered by the defendant condition of the defendant may be offered by the defendant
whenever it is relevant to reduce murder from a higher degree whenever it is relevant to reduce murder from a higher degree
to a lower degree of murder. to a lower degree of murder.
Section 308, however, does not render evidence of intoxication completely Section 308, however, does not render evidence of intoxication completely
irrelevant, apart from reducing murder from a higher degree to a lower degree. The irrelevant, apart from reducing murder from a higher degree to a lower degree. The
Pennsylvania Supreme Court explained in Commonwealth v. Bridge, 495 Pa. 568, 435 Pennsylvania Supreme Court explained in Commonwealth v. Bridge, 495 Pa. 568, 435
A.2d 151 (1981), that proof of intoxication may be admitted to show that the accused A.2d 151 (1981), that proof of intoxication may be admitted to show that the accused
could not have committed the criminal act charged. This is a defense that could be could not have committed the criminal act charged. This is a defense that could be
relevant to a charge of sexual violence: relevant to a charge of sexual violence:
For instance, if the accused seeks to offer his intoxication to prove For instance, if the accused seeks to offer his intoxication to prove
that he did not perform the physical act required by the crime that he did not perform the physical act required by the crime
that he was unconscious at the time and therefore did not commit that he was unconscious at the time and therefore did not commit
the deed this evidence is germane to the factfinders inquiry and the deed this evidence is germane to the factfinders inquiry and
is properly submitted for their evaluation. In such cases, the issue is properly submitted for their evaluation. In such cases, the issue
can be neatly confined to the question of whether the accused can be neatly confined to the question of whether the accused
was the perpetrator of the deed charged. was the perpetrator of the deed charged.
Id., 495 Pa. at 573-574, 435 A.2d at 154. That being said, Section 308 firmly establishes Id., 495 Pa. at 573-574, 435 A.2d at 154. That being said, Section 308 firmly establishes
that the actors degree of sobriety is not relevant in establishing the absence of intent that the actors degree of sobriety is not relevant in establishing the absence of intent
required to commit the crime charged. As the Superior Court stated in Commonwealth required to commit the crime charged. As the Superior Court stated in Commonwealth
v. Rumsey, 454 A.2d 1121 (Pa. Super. 1983), v. Rumsey, 454 A.2d 1121 (Pa. Super. 1983),
it is apparent that in amended 308 the legislature in effect it is apparent that in amended 308 the legislature in effect
redefined the mens rea element of intentional or knowing crimes redefined the mens rea element of intentional or knowing crimes
to include those cases where the putative offender performed the to include those cases where the putative offender performed the
criminal act but was unable to form the criminal intent otherwise criminal act but was unable to form the criminal intent otherwise
required solely because he was voluntarily drunk or drugged. required solely because he was voluntarily drunk or drugged.
Id., at 1122. See also, Commonwealth v. Plant, 478 A.2d 872, 876 (Pa. Super. 1984). Id., at 1122. See also, Commonwealth v. Plant, 478 A.2d 872, 876 (Pa. Super. 1984).
B. Involuntary Intoxication B. Involuntary Intoxication
The existence and scope of the defense of involuntary intoxication is not yet The existence and scope of the defense of involuntary intoxication is not yet
fully established in Pennsylvania law. Commonwealth v. Smith, 831 A.2d 636, 639 (Pa. fully established in Pennsylvania law. Commonwealth v. Smith, 831 A.2d 636, 639 (Pa.
Defenses Defenses
Super. 2003), appeal denied, 576 Pa. 722, 841 A.2d 531 (2003) (quoting Committee Note, Super. 2003), appeal denied, 576 Pa. 722, 841 A.2d 531 (2003) (quoting Committee Note,
PA.S.S.J.I. Crim. 8.308(c)). Involuntary intoxication evidence is like the insanity defense PA.S.S.J.I. Crim. 8.308(c)). Involuntary intoxication evidence is like the insanity defense
in that the defendant is excused from criminality because intoxication affects the ability in that the defendant is excused from criminality because intoxication affects the ability
to distinguish between right and wrong. Smith, 831 A.2d at 639 n.2. Accordingly, the to distinguish between right and wrong. Smith, 831 A.2d at 639 n.2. Accordingly, the
mental state of an involuntarily intoxicated defendant is measured by the test of legal mental state of an involuntarily intoxicated defendant is measured by the test of legal
insanity. Id. insanity. Id.
In Smith, the Superior Court noted that In Smith, the Superior Court noted that
[t]he defense of involuntary intoxication has been recognized [t]he defense of involuntary intoxication has been recognized
in other jurisdictions in four types of situations: (1) where the in other jurisdictions in four types of situations: (1) where the
intoxication was caused by the fault of another (i.e., through intoxication was caused by the fault of another (i.e., through
force, duress, fraud, or contrivance); (2) where the intoxication force, duress, fraud, or contrivance); (2) where the intoxication
was caused by an innocent mistake on the part of the defendant was caused by an innocent mistake on the part of the defendant
(i.e., defendant took hallucinogenic pill in reasonable belief (i.e., defendant took hallucinogenic pill in reasonable belief
it was aspirin or lawful tranquilizer); (3) where a defendant it was aspirin or lawful tranquilizer); (3) where a defendant
unknowingly suffers from a physiological or psychological unknowingly suffers from a physiological or psychological
condition that renders him abnormally susceptible to a legal condition that renders him abnormally susceptible to a legal
intoxicant (sometimes referred to as pathological intoxication); intoxicant (sometimes referred to as pathological intoxication);
and (4) where unexpected intoxication results from a medically and (4) where unexpected intoxication results from a medically
prescribed drug. prescribed drug.
Id., at 639 (citing Phillip E. Hassman, Annotation, When Intoxication Deemed Involuntary Id., at 639 (citing Phillip E. Hassman, Annotation, When Intoxication Deemed Involuntary
so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195 at 2[a] (1976)). A key so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195 at 2[a] (1976)). A key
component to all four of these definitions is the lack of culpability on the part of the component to all four of these definitions is the lack of culpability on the part of the
defendant in causing the intoxication. Id. defendant in causing the intoxication. Id.
A defendant will not be excused from his or her behavior for intoxication resulting A defendant will not be excused from his or her behavior for intoxication resulting
from the unwitting mixture of prescription drugs and alcohol. See Commonwealth v. from the unwitting mixture of prescription drugs and alcohol. See Commonwealth v.
Smith, 831 A.2d 636, 640 (Pa. Super. 2003), appeal denied, 576 Pa. 722, 841 A.2d 531 Smith, 831 A.2d 636, 640 (Pa. Super. 2003), appeal denied, 576 Pa. 722, 841 A.2d 531
(2003), in which the Superior Court noted that Pennsylvania law is consistent with the (2003), in which the Superior Court noted that Pennsylvania law is consistent with the
Model Penal Codes definition and would not characterize intoxication produced by the Model Penal Codes definition and would not characterize intoxication produced by the
voluntary consumption of a prescription drug and alcohol as involuntary even if that voluntary consumption of a prescription drug and alcohol as involuntary even if that
consumption was without knowledge of a synergistic effect. consumption was without knowledge of a synergistic effect.
The defendant has the burden of proving the affirmative defense of involuntary The defendant has the burden of proving the affirmative defense of involuntary
intoxication by a preponderance of the evidence. Commonwealth v. Griffith, 985 A.2d intoxication by a preponderance of the evidence. Commonwealth v. Griffith, 985 A.2d
230, 236 (Pa. Super. 2009), rev. on other grounds, 613 Pa. 171, 32 A.3d 1231 (2011); 230, 236 (Pa. Super. 2009), rev. on other grounds, 613 Pa. 171, 32 A.3d 1231 (2011);
Commonwealth v. Smith, 831 A.2d 636, 640 (Pa. Super. 2003), appeal denied, 576 Pa. Commonwealth v. Smith, 831 A.2d 636, 640 (Pa. Super. 2003), appeal denied, 576 Pa.
722, 841 A.2d 531 (2003). In dicta, the Court in Smith, where the defendant consumed 722, 841 A.2d 531 (2003). In dicta, the Court in Smith, where the defendant consumed
alcohol and prescription drugs, noted that the trial court cannot take judicial notice that alcohol and prescription drugs, noted that the trial court cannot take judicial notice that
the combination of drugs and alcohol is capable of causing extreme intoxication. Id., at the combination of drugs and alcohol is capable of causing extreme intoxication. Id., at
641. The Court noted that expert testimony is needed to establish intoxicating effect. Id. 641. The Court noted that expert testimony is needed to establish intoxicating effect. Id.
Defenses Defenses
5.9 MISTAKE OF FACT 5.9 MISTAKE OF FACT
A. Statutory Elements of Defense A. Statutory Elements of Defense
The concept of mistake of fact has long been a fixture in Pennsylvania criminal The concept of mistake of fact has long been a fixture in Pennsylvania criminal
law. See Commonwealth v. Fischer, 721 A.2d 1111, 1117 (Pa. Super. 1998). Under law. See Commonwealth v. Fischer, 721 A.2d 1111, 1117 (Pa. Super. 1998). Under
most circumstances, but not necessarily crimes of sexual violence, a mistake of fact can most circumstances, but not necessarily crimes of sexual violence, a mistake of fact can
disprove a required element of criminal intent. Section 304 of the Crimes Code sets forth disprove a required element of criminal intent. Section 304 of the Crimes Code sets forth
the statutory elements of the defense as follows: the statutory elements of the defense as follows:
Ignorance or mistake as to a matter of fact, for which there is Ignorance or mistake as to a matter of fact, for which there is
reasonable explanation or excuse, is a defense if: reasonable explanation or excuse, is a defense if:
(1) the ignorance or mistake negatives the intent, knowledge, (1) the ignorance or mistake negatives the intent, knowledge,
belief, recklessness, or negligence required to establish a belief, recklessness, or negligence required to establish a
material element of the offense; or material element of the offense; or
(2) the law provides that the state of mind established by such (2) the law provides that the state of mind established by such
ignorance or mistake constitutes a defense. ignorance or mistake constitutes a defense.
It is not necessary that the facts be as the actor believed them to be; it is only It is not necessary that the facts be as the actor believed them to be; it is only
necessary that he have a bona fide and reasonable belief in the existence of facts which, necessary that he have a bona fide and reasonable belief in the existence of facts which,
if they did exist, would render an act innocent. Commonwealth v. Scott, 73 A.3d if they did exist, would render an act innocent. Commonwealth v. Scott, 73 A.3d
599, 603 (Pa. Super. 2013) (quoting Commonwealth v. Lefever, 30 A.2d 364, 365 (Pa. 599, 603 (Pa. Super. 2013) (quoting Commonwealth v. Lefever, 30 A.2d 364, 365 (Pa.
Super. 1943)). Where the mistake of fact is not reasonable, it is not a defense even if Super. 1943)). Where the mistake of fact is not reasonable, it is not a defense even if
the defendant had a bona fide belief in its existence. See 18 Pa.Cons.Stat.Ann. 304, the defendant had a bona fide belief in its existence. See 18 Pa.Cons.Stat.Ann. 304,
Comment. Comment.
When evidence of a mistake of fact is introduced, the Commonwealth retains When evidence of a mistake of fact is introduced, the Commonwealth retains
the burden of proving the necessary criminal intent beyond a reasonable doubt. See the burden of proving the necessary criminal intent beyond a reasonable doubt. See
Commonwealth v. Hamilton, 766 A.2d 874, 879 (Pa. Super. 2001). Simply put, the Commonwealth v. Hamilton, 766 A.2d 874, 879 (Pa. Super. 2001). Simply put, the
Commonwealth must prove either the absence of a bona fide, reasonable mistake, or Commonwealth must prove either the absence of a bona fide, reasonable mistake, or
that the mistake alleged would not have negated the intent necessary to prove the crime that the mistake alleged would not have negated the intent necessary to prove the crime
charged. Id. See also, Commonwealth v. Namack, 663 A.2d 191, 195 (Pa. Super. 1995). charged. Id. See also, Commonwealth v. Namack, 663 A.2d 191, 195 (Pa. Super. 1995).
C. Applicability to Sex Offenses Mistake as to Consent C. Applicability to Sex Offenses Mistake as to Consent
In Commonwealth v. Williams, 439 A.2d 765 (Pa. Super. 1982), the defendant In Commonwealth v. Williams, 439 A.2d 765 (Pa. Super. 1982), the defendant
argued that the trial court should have instructed the jury that if he reasonably believed argued that the trial court should have instructed the jury that if he reasonably believed
that the victim had consented to his sexual advances that he would then have a defense that the victim had consented to his sexual advances that he would then have a defense
to the rape and involuntary deviate sexual intercourse charge. In other words, that his to the rape and involuntary deviate sexual intercourse charge. In other words, that his
Defenses Defenses
counsel should have requested a jury instruction regarding a reasonable mistake of fact, counsel should have requested a jury instruction regarding a reasonable mistake of fact,
as to consent. The Superior Court rejected the defendants argument stating: as to consent. The Superior Court rejected the defendants argument stating:
The charge requested by the defendant is not now and has never The charge requested by the defendant is not now and has never
been the law of Pennsylvania. The crux of the offense of rape is been the law of Pennsylvania. The crux of the offense of rape is
force and lack of victims consent. When one individual uses force force and lack of victims consent. When one individual uses force
or the threat thereof to have sexual relations with a person not or the threat thereof to have sexual relations with a person not
his spouse and without the persons consent he has committed his spouse and without the persons consent he has committed
the crime of rape. If the element of the defendants belief as to the crime of rape. If the element of the defendants belief as to
the victims state of mind is to be established as a defense to the the victims state of mind is to be established as a defense to the
crime of rape then it should be done by our legislature which has crime of rape then it should be done by our legislature which has
the power to define crimes and offenses. We refuse to create such the power to define crimes and offenses. We refuse to create such
a defense. a defense.
Id., at 769 (internal citations omitted)(emphasis added). Id., at 769 (internal citations omitted)(emphasis added).
In Commonwealth v. Fischer, 721 A.2d 1111 (Pa. Super. 1998), appeal granted, In Commonwealth v. Fischer, 721 A.2d 1111 (Pa. Super. 1998), appeal granted,
556 Pa. 620, 730 A.2d 485 (1999), appeal dismissed as improvidently granted, 560 556 Pa. 620, 730 A.2d 485 (1999), appeal dismissed as improvidently granted, 560
Pa. 410, 745 A.2d 1214 (1999), the Superior Court traced the changes in sexual assault Pa. 410, 745 A.2d 1214 (1999), the Superior Court traced the changes in sexual assault
laws since Williams was decided, and concluded that Williams was still binding law laws since Williams was decided, and concluded that Williams was still binding law
in Pennsylvania. It is important to note that the Pennsylvania Supreme Court, after in Pennsylvania. It is important to note that the Pennsylvania Supreme Court, after
initially granting review, later dismissed the appeal, which leaves the Superior Court initially granting review, later dismissed the appeal, which leaves the Superior Court
decision as controlling. Therefore, as the Superior Court concluded, no mistake of fact decision as controlling. Therefore, as the Superior Court concluded, no mistake of fact
instruction was required in Fischer, a date rape case where the victim alleged she was instruction was required in Fischer, a date rape case where the victim alleged she was
sexually assaulted but the defendant claimed he reasonably believed the rough sex was sexually assaulted but the defendant claimed he reasonably believed the rough sex was
consensual.18 consensual.18
In Commonwealth v. Farmer, 758 A.2d 173 (Pa. Super. 2000), appeal denied, In Commonwealth v. Farmer, 758 A.2d 173 (Pa. Super. 2000), appeal denied,
565 Pa. 637, 771 A.2d 1279 (2001), a request for a mistake of fact instruction was not 565 Pa. 637, 771 A.2d 1279 (2001), a request for a mistake of fact instruction was not
warranted in rape and involuntary deviate sexual assault case, reiterating that Williams warranted in rape and involuntary deviate sexual assault case, reiterating that Williams
and Fischer represent the law in Pennsylvania.19 and Fischer represent the law in Pennsylvania.19
D. Applicability to Sex Offenses - Mistake as to Age D. Applicability to Sex Offenses - Mistake as to Age
A viable defense as to mistake of age is dependent on the age of the victim and the A viable defense as to mistake of age is dependent on the age of the victim and the
crime charged. If the crime defines the victim as younger than fourteen years old, there crime charged. If the crime defines the victim as younger than fourteen years old, there
is no viable defense based on mistake of age. If, however, it is possible that the victim is no viable defense based on mistake of age. If, however, it is possible that the victim
is fourteen years old or older, a defendant can try to show, by a preponderance of the is fourteen years old or older, a defendant can try to show, by a preponderance of the
evidence, that he or she reasonably believed the victim to be older than the critical age evidence, that he or she reasonably believed the victim to be older than the critical age
of criminality. This is codified at Section 3102 of the Crimes Code. of criminality. This is codified at Section 3102 of the Crimes Code.
Section 3102 states the following: Section 3102 states the following:
18 The decision by the Superior Court in Fischer was made based upon the precedent from Williams and may not have reflected the 18 The decision by the Superior Court in Fischer was made based upon the precedent from Williams and may not have reflected the
Superior Courts policy. The Superior Court commented: Although the logic of these other cases is persuasive, we are unable to adopt Superior Courts policy. The Superior Court commented: Although the logic of these other cases is persuasive, we are unable to adopt
the principles enunciated in them because of the binding precedent with which we are faced, namely Williams. 721 A.2d at 1117. the principles enunciated in them because of the binding precedent with which we are faced, namely Williams. 721 A.2d at 1117.
19 See Annot., Defense of Mistake of Fact as to Victims Consent in Rape Prosecution (2002) 102 A.L.R. 5th 447. 19 See Annot., Defense of Mistake of Fact as to Victims Consent in Rape Prosecution (2002) 102 A.L.R. 5th 447.
Defenses Defenses
criminality of conduct depends on a child being below the age criminality of conduct depends on a child being below the age
of 14 years, it is no defense that the defendant did not know the of 14 years, it is no defense that the defendant did not know the
age of the child or reasonably believed the child to be the age age of the child or reasonably believed the child to be the age
of 14 years or older. When criminality depends on the childs of 14 years or older. When criminality depends on the childs
being below a critical age older than 14 years, it is a defense being below a critical age older than 14 years, it is a defense
for the defendant to prove by a preponderance of the evidence for the defendant to prove by a preponderance of the evidence
that he or she reasonably believed the child to be above the that he or she reasonably believed the child to be above the
critical age. critical age.
18 Pa.Cons.Stat.Ann. 3102. Section 3102 reflects the Pennsylvania legislatures 18 Pa.Cons.Stat.Ann. 3102. Section 3102 reflects the Pennsylvania legislatures
decision that one eighteen years of age or older who engages in sexual intercourse decision that one eighteen years of age or older who engages in sexual intercourse
with a child below fourteen years of age does so at his own peril. Commonwealth v. with a child below fourteen years of age does so at his own peril. Commonwealth v.
Robinson, 497 Pa. 49, 54, 438 A.2d 964, 966 (1981). Robinson, 497 Pa. 49, 54, 438 A.2d 964, 966 (1981).
If the victim is older than fourteen years of age, it is the defendants belief which If the victim is older than fourteen years of age, it is the defendants belief which
must be reasonable. See Commonwealth v. Fetter, 770 A.2d 762, 768 (Pa. Super. 2001), must be reasonable. See Commonwealth v. Fetter, 770 A.2d 762, 768 (Pa. Super. 2001),
affd, 570 Pa. 494, 810 A.2d 637 (2002) (no error for trial court to not allow defendant affd, 570 Pa. 494, 810 A.2d 637 (2002) (no error for trial court to not allow defendant
to cross-examine fifteen year old victim as to whether she believed that she looked to cross-examine fifteen year old victim as to whether she believed that she looked
older than her actual age as the victims beliefs as to how old she looked is irrelevant older than her actual age as the victims beliefs as to how old she looked is irrelevant
to appellants beliefs and knowledge of her actual age). As noted, if the victim is under to appellants beliefs and knowledge of her actual age). As noted, if the victim is under
fourteen years of age, the defendants belief that the victim was older is irrelevant. See fourteen years of age, the defendants belief that the victim was older is irrelevant. See
Commonwealth v. Hall, 418 A.2d 623, 624 (Pa. Super. 1980) (defendants testimony Commonwealth v. Hall, 418 A.2d 623, 624 (Pa. Super. 1980) (defendants testimony
that victim stated that she was sixteen years old, when in fact she was thirteen, was not that victim stated that she was sixteen years old, when in fact she was thirteen, was not
a viable defense as defendants mistaken belief was irrelevant under Section 3102). a viable defense as defendants mistaken belief was irrelevant under Section 3102).
E. No Conflict between Sections 3102 and 304 of the Crimes Code E. No Conflict between Sections 3102 and 304 of the Crimes Code
As stated above, section 3102 of the Crimes Code provides: As stated above, section 3102 of the Crimes Code provides:
critical age. critical age.
18 Pa.Cons.Stat.Ann. 3102. Section 304 provides: 18 Pa.Cons.Stat.Ann. 3102. Section 304 provides:
Ignorance or mistake as to a matter of fact, for which there is Ignorance or mistake as to a matter of fact, for which there is
reasonable explanation or excuse, is a defense if: reasonable explanation or excuse, is a defense if:
(1) the ignorance or mistake negatives the intent, knowledge, (1) the ignorance or mistake negatives the intent, knowledge,
belief, recklessness, or negligence required a establish a belief, recklessness, or negligence required a establish a
Defenses Defenses
material element of the offense; or material element of the offense; or

(2) the law provides that the state of mind established by such (2) the law provides that the state of mind established by such
ignorance or mistake constitutes a defense. ignorance or mistake constitutes a defense.
In Commonwealth v. Robinson, 399 A.2d 1084, 1087-1088 (Pa. Super. 1979), In Commonwealth v. Robinson, 399 A.2d 1084, 1087-1088 (Pa. Super. 1979),
affd, 497 Pa. 49, 438 A.2d 964 (1981), the Superior Court held that Section 3102 was affd, 497 Pa. 49, 438 A.2d 964 (1981), the Superior Court held that Section 3102 was
not invalid due to fact that it allegedly conflicted with, inter alia, Section 304 in light not invalid due to fact that it allegedly conflicted with, inter alia, Section 304 in light
of fact that Section 3102 was a specific provision relating to sexual offenses and the of fact that Section 3102 was a specific provision relating to sexual offenses and the
other statutory provisions in question were previously enacted provisions dealing with other statutory provisions in question were previously enacted provisions dealing with
general guidelines on culpability for the whole of the Crimes Code. general guidelines on culpability for the whole of the Crimes Code.
5.10 MISTAKE OF LAW 5.10 MISTAKE OF LAW
Generally speaking, ignorance or mistake of law is no defense. 18 Pa.Cons.Stat. Generally speaking, ignorance or mistake of law is no defense. 18 Pa.Cons.Stat.
Ann. 304, Comment (1998). See also, Commonwealth v. Cohen, 538 A.2d 582, 584 (Pa. Ann. 304, Comment (1998). See also, Commonwealth v. Cohen, 538 A.2d 582, 584 (Pa.
Super. 1988), appeal denied, 520 Pa. 581, 549 A.2d 914 (1988) (neither ignorance of Super. 1988), appeal denied, 520 Pa. 581, 549 A.2d 914 (1988) (neither ignorance of
the law or mistake of the law is a defense to the commission of a crime.). the law or mistake of the law is a defense to the commission of a crime.).
In Commonwealth v. Kratsas, 564 Pa. 36, 764 A.2d 20 (2001), however, our In Commonwealth v. Kratsas, 564 Pa. 36, 764 A.2d 20 (2001), however, our
Supreme Court noted that it had no doubt that the due process provisions of the United Supreme Court noted that it had no doubt that the due process provisions of the United
States and Pennsylvania constitutions, at least in a narrow set of unique and compelling States and Pennsylvania constitutions, at least in a narrow set of unique and compelling
circumstances, would serve both as an exception to the maxim that mistake of law is no circumstances, would serve both as an exception to the maxim that mistake of law is no
defense, and ultimately to foreclose a criminal prosecution. Id., 564 Pa. at 56, 764 defense, and ultimately to foreclose a criminal prosecution. Id., 564 Pa. at 56, 764
A.2d at 31 (internal citations omitted). A.2d at 31 (internal citations omitted).
5.11 STATUTES OF LIMITATION 5.11 STATUTES OF LIMITATION
The general rule is that offenses under the Crimes Code must be commenced The general rule is that offenses under the Crimes Code must be commenced
within the limitations period specified by the Judicial Code, 42 Pa.Cons.Stat.Ann. within the limitations period specified by the Judicial Code, 42 Pa.Cons.Stat.Ann.
5501-5574. 5501-5574.
Our jurisprudence holds that the statute of limitations is not a constitutional right Our jurisprudence holds that the statute of limitations is not a constitutional right
but, instead, an act of the legislature, whereby the government agrees not to prosecute but, instead, an act of the legislature, whereby the government agrees not to prosecute
an individual after the passage of a stated period of time. Commonwealth v. Russell, 938 an individual after the passage of a stated period of time. Commonwealth v. Russell, 938
A. Raising the Defense of the Statute of Limitations A. Raising the Defense of the Statute of Limitations
1. Pretrial motion 1. Pretrial motion
The proper method for Defense Counsel to raise the statute of limitations The proper method for Defense Counsel to raise the statute of limitations
defense is in a pretrial omnibus motion. The defense must raise the statute of defense is in a pretrial omnibus motion. The defense must raise the statute of
Defenses Defenses
limitations defense pretrial; otherwise, it is waived. See Commonwealth v. limitations defense pretrial; otherwise, it is waived. See Commonwealth v.
Corban Corp., 909 A.2d 406, 411 (Pa. Super. 2006), affd 598 Pa. 459, 957 A.2d Corban Corp., 909 A.2d 406, 411 (Pa. Super. 2006), affd 598 Pa. 459, 957 A.2d
274 (2008); Commonwealth v. Groff, 548 A.2d 1237, 1244 (Pa. Super. 1988) 274 (2008); Commonwealth v. Groff, 548 A.2d 1237, 1244 (Pa. Super. 1988)
(case involved charges of statutory rape and indecent assault among others). If (case involved charges of statutory rape and indecent assault among others). If
the defense is not so raised it is waived. Id., at 1245 n.8. the defense is not so raised it is waived. Id., at 1245 n.8.
2. Standard of review 2. Standard of review
The Commonwealth bears the burden to establish that the crime as The Commonwealth bears the burden to establish that the crime as
charged was committed within the applicable statute of limitations period. charged was committed within the applicable statute of limitations period.
Corban Corp., 909 A.2d at 411; Groff, 548 A.2d at 1248. Corban Corp., 909 A.2d at 411; Groff, 548 A.2d at 1248.
If the statute of limitations defense presents questions of fact, it must be If the statute of limitations defense presents questions of fact, it must be
referred to the finder of fact at trial. Groff, 548 A.2d at 1246-1237. If there are no referred to the finder of fact at trial. Groff, 548 A.2d at 1246-1237. If there are no
questions of fact and the evidence regarding the limitations period is unrebutted, questions of fact and the evidence regarding the limitations period is unrebutted,
the trial judge may take the issue from the jury. Commonwealth v. Hawkins, the trial judge may take the issue from the jury. Commonwealth v. Hawkins,
441 A.2d 1308, 1311 n. 5 (Pa. Super. 1982); Commonwealth v. Hoffman, 398 441 A.2d 1308, 1311 n. 5 (Pa. Super. 1982); Commonwealth v. Hoffman, 398
A.2d 658, 661 (Pa. Super. 1979)(no error in failing to submit issue of statute of A.2d 658, 661 (Pa. Super. 1979)(no error in failing to submit issue of statute of
limitations to jury when evidence of date of crime was unrebutted). limitations to jury when evidence of date of crime was unrebutted).
B. Particular Sexual Violence Offenses B. Particular Sexual Violence Offenses
The following sexual offenses, as mandated by 42 Pa.Cons.Stat.Ann. 5552(b.1), The following sexual offenses, as mandated by 42 Pa.Cons.Stat.Ann. 5552(b.1),
have 12 year statutes of limitations: have 12 year statutes of limitations:
Rape, 18 Pa.Cons.Stat.Ann. 3121 Rape, 18 Pa.Cons.Stat.Ann. 3121

Statutory sexual assault, 18 Pa.Cons.Stat.Ann. 3122.1 Statutory sexual assault, 18 Pa.Cons.Stat.Ann. 3122.1
Involuntary deviate sexual intercourse, 18 Pa.Cons.Stat.Ann. Involuntary deviate sexual intercourse, 18 Pa.Cons.Stat.Ann.
3123 3123
Sexual assault, 18 Pa.Cons.Stat.Ann. 3124.1 Sexual assault, 18 Pa.Cons.Stat.Ann. 3124.1
Aggravated indecent assault, 18 Pa.Cons.Stat.Ann. Aggravated indecent assault, 18 Pa.Cons.Stat.Ann.
3125 3125
Incest, 18 Pa.Cons.Stat.Ann. 4302 Incest, 18 Pa.Cons.Stat.Ann. 4302
Sexual abuse of children, 18 Pa.Cons.Stat.Ann. 6312 Sexual abuse of children, 18 Pa.Cons.Stat.Ann. 6312
The following sexual offenses have, as mandated by 42 Pa.Con.Stat.Ann The following sexual offenses have, as mandated by 42 Pa.Con.Stat.Ann
5552(a), two year statutes of limitations: 5552(a), two year statutes of limitations:
Institutional sexual assault, 18 Pa.Cons.Stat.Ann. 3124.2 Institutional sexual assault, 18 Pa.Cons.Stat.Ann. 3124.2
Indecent assault, 18 Pa.Cons.Stat.Ann. 3126 Indecent assault, 18 Pa.Cons.Stat.Ann. 3126
Indecent exposure, 18 Pa.Cons.Stat.Ann. 3127 Indecent exposure, 18 Pa.Cons.Stat.Ann. 3127
Any offense which does not have a specifically enumerated statute of limitation Any offense which does not have a specifically enumerated statute of limitation
must be commenced within two years after it is committed. 18 Pa.Cons.Stat.Ann. must be commenced within two years after it is committed. 18 Pa.Cons.Stat.Ann.
5552(a). 5552(a).
Defenses Defenses
C. Minority Tolling Provision C. Minority Tolling Provision
1. Extended statute of limitations 1. Extended statute of limitations
In certain enumerated cases of sexual violence against children, the statute In certain enumerated cases of sexual violence against children, the statute
of limitations was extended to give the Commonwealth until the child victims of limitations was extended to give the Commonwealth until the child victims
50th birthday to file charges. The new law, which became effective January 28, 50th birthday to file charges. The new law, which became effective January 28,
2007, applies to any case in which the statute of limitations had not yet expired 2007, applies to any case in which the statute of limitations had not yet expired
before the new law took effect. before the new law took effect.
As provided by 42 Pa.Cons.Stat.Ann. 5552(c)(3), the following sexual As provided by 42 Pa.Cons.Stat.Ann. 5552(c)(3), the following sexual
offenses committed against a minor who is less than 18 years of age may be offenses committed against a minor who is less than 18 years of age may be
brought up to (1) the applicable period of limitation provided by law after the brought up to (1) the applicable period of limitation provided by law after the
minor has reached 18 years of age, or (2) the date the minor reaches 50 years of minor has reached 18 years of age, or (2) the date the minor reaches 50 years of
age: age:

Statutory sexual assault, 18 Pa.Cons.Stat.Ann. 3122.1 Statutory sexual assault, 18 Pa.Cons.Stat.Ann. 3122.1
Involuntary deviate sexual intercourse, 18 Pa.Cons.Stat.Ann. 3123 Involuntary deviate sexual intercourse, 18 Pa.Cons.Stat.Ann. 3123
Sexual assault, 18 Pa.Cons.Stat.Ann. 3124.1 Sexual assault, 18 Pa.Cons.Stat.Ann. 3124.1
Aggravated indecent assault, 18 Pa.Cons.Stat.Ann. 3125 Aggravated indecent assault, 18 Pa.Cons.Stat.Ann. 3125
Indecent assault, 18 Pa.Cons.Stat.Ann. 3126 Indecent assault, 18 Pa.Cons.Stat.Ann. 3126
Indecent exposure, 18 Pa.Cons.Stat.Ann. 3127 Indecent exposure, 18 Pa.Cons.Stat.Ann. 3127
Endangering welfare of children, 18 Pa.Cons.Stat.Ann. 4304 Endangering welfare of children, 18 Pa.Cons.Stat.Ann. 4304
Corruption of minors, 18 Pa.Cons.Stat.Ann. 6301 Corruption of minors, 18 Pa.Cons.Stat.Ann. 6301
Sexual abuse of children, relating to photographing, videotaping, depicting Sexual abuse of children, relating to photographing, videotaping, depicting
on computer or filming sexual acts, 18 Pa.Cons.Stat.Ann. 6312(b) on computer or filming sexual acts, 18 Pa.Cons.Stat.Ann. 6312(b)
Sexual exploitation of children, 18 Pa.Cons.Stat.Ann. 6320 Sexual exploitation of children, 18 Pa.Cons.Stat.Ann. 6320
In Commonwealth v. Louden, 569 Pa. 245, 252-253, 803 A.2d 1181, 1185 In Commonwealth v. Louden, 569 Pa. 245, 252-253, 803 A.2d 1181, 1185
(2002), the Pennsylvania Supreme Court found justification for the minority (2002), the Pennsylvania Supreme Court found justification for the minority
tolling provision found in 5552(c)(3). However, even if a claim is filed within the tolling provision found in 5552(c)(3). However, even if a claim is filed within the
limitations period, a defendant may nevertheless seek dismissal of the charges if limitations period, a defendant may nevertheless seek dismissal of the charges if
he can establish that the delay in filing the charges has denied him due process he can establish that the delay in filing the charges has denied him due process
of law. Id., 569 Pa. at 250, 803 A.2d at 1184. In such a case, the defendant must of law. Id., 569 Pa. at 250, 803 A.2d at 1184. In such a case, the defendant must
establish: (1) actual prejudice caused by the delay, and (2) the Commonwealths establish: (1) actual prejudice caused by the delay, and (2) the Commonwealths
reasons for the inordinate delay were improper. Id. reasons for the inordinate delay were improper. Id.
2. Application of extended statute of limitations 2. Application of extended statute of limitations
The new statute applies to any case in which the statute of limitations The new statute applies to any case in which the statute of limitations
had not yet expired before the new law took effect, i.e., January 28, 2007. To had not yet expired before the new law took effect, i.e., January 28, 2007. To
determine whether the old statute has expired, the date of the victims 18th determine whether the old statute has expired, the date of the victims 18th
birthday is the critical date rather than the date of the commission of the offense. birthday is the critical date rather than the date of the commission of the offense.
Defenses Defenses
On August 27, 2002, the statutes of limitations for most child sexual abuse On August 27, 2002, the statutes of limitations for most child sexual abuse
charges were extended to 12 years after the victims 18th birthday. That change charges were extended to 12 years after the victims 18th birthday. That change
in the statute of limitations applied to cases in which a child victim turned 18 on in the statute of limitations applied to cases in which a child victim turned 18 on
or after August 27, 2002. Since the 12-year period has not yet expired before or after August 27, 2002. Since the 12-year period has not yet expired before
the new law took effect, the statute of limitations for cases under the 2002 the new law took effect, the statute of limitations for cases under the 2002
amendment has now been extended to the victims 50th birthday. amendment has now been extended to the victims 50th birthday.
Before the 2002 amendment, the statute of limitations for most child Before the 2002 amendment, the statute of limitations for most child
sexual abuse cases was 5 years after the victims 18th birthday; some calculations sexual abuse cases was 5 years after the victims 18th birthday; some calculations
as to whether the statute had expired by January 28, 2007 will be necessary. as to whether the statute had expired by January 28, 2007 will be necessary.
For cases involving child victims who turned 18 on or after August 27, For cases involving child victims who turned 18 on or after August 27,
2002, the Commonwealth now has until the victims 50th birthday to file criminal 2002, the Commonwealth now has until the victims 50th birthday to file criminal
charges for abuse that occurred before the victim turned 18. charges for abuse that occurred before the victim turned 18.
After a term of limitations has expired, a newly created and longer statute After a term of limitations has expired, a newly created and longer statute
of limitations, or the enactment of an extended period, cannot serve to revive the of limitations, or the enactment of an extended period, cannot serve to revive the
prior cause. Commonwealth v. Harvey, 542 A.2d 1027, 1030 (Pa. Super. 1988). prior cause. Commonwealth v. Harvey, 542 A.2d 1027, 1030 (Pa. Super. 1988).
D. Tolling of the Statute of Limitations D. Tolling of the Statute of Limitations
Section 5554 of the Judicial Code provides that the period of limitations is tolled Section 5554 of the Judicial Code provides that the period of limitations is tolled
during the following periods: during the following periods:
(1) the accused is continuously absent from this Commonwealth (1) the accused is continuously absent from this Commonwealth
or has no reasonably ascertainable place of abode or work or has no reasonably ascertainable place of abode or work
within this Commonwealth; within this Commonwealth;
(2) a prosecution against the accused for the same conduct is (2) a prosecution against the accused for the same conduct is
pending in this Commonwealth; or pending in this Commonwealth; or
(3) a child is under 18 years of age, where the crime involves (3) a child is under 18 years of age, where the crime involves
injuries to the person of the child caused by the wrongful act, injuries to the person of the child caused by the wrongful act,
or neglect, or unlawful violence, or negligence of the childs or neglect, or unlawful violence, or negligence of the childs
parents or by a person responsible for the childs welfare, or parents or by a person responsible for the childs welfare, or
any individual residing in the same home as the child, or a any individual residing in the same home as the child, or a
paramour of the childs parent. paramour of the childs parent.
This section requiring tolling is applicable to sexual assault victims. This section requiring tolling is applicable to sexual assault victims.
Commonwealth v. Perry, 588 A.2d 917, 918-919 (Pa. Super. 1991), appeal denied, Commonwealth v. Perry, 588 A.2d 917, 918-919 (Pa. Super. 1991), appeal denied,
529 Pa. 619, 600 A.2d 535 (1991). This section also applies to any defendant who is 529 Pa. 619, 600 A.2d 535 (1991). This section also applies to any defendant who is
entrusted with custody and control of a child during a parents absence, and therefore entrusted with custody and control of a child during a parents absence, and therefore
is much broader than one who stands in loco parentis to the child. Commonwealth is much broader than one who stands in loco parentis to the child. Commonwealth
v. Gerstner, 540 Pa. 116, 656 A.2d 108 (1995)(Defendant, who supplied babysitting v. Gerstner, 540 Pa. 116, 656 A.2d 108 (1995)(Defendant, who supplied babysitting
services, charged with indecent assault and corruption of minors). services, charged with indecent assault and corruption of minors).
Defenses Defenses
E. Commission of Offense E. Commission of Offense
An offense is committed: An offense is committed:
either when every element occurs, or, if a legislative purpose either when every element occurs, or, if a legislative purpose
to prohibit a continuing course of conduct plainly appears, at to prohibit a continuing course of conduct plainly appears, at
the time when the course of conduct or the complicity of the the time when the course of conduct or the complicity of the
defendant therein is terminated. Time starts to run on the day defendant therein is terminated. Time starts to run on the day
after the offense is committed. after the offense is committed.
42 Pa.Cons.Stat.Ann. 5552(d). 42 Pa.Cons.Stat.Ann. 5552(d).
F. Commencement of Limitations Period F. Commencement of Limitations Period
The commencement of the limitations period is on the day after the offense is The commencement of the limitations period is on the day after the offense is
committed. See 42 Pa.Cons.Stat.Ann. 5552(d). The Judicial Code authorizes exceptions committed. See 42 Pa.Cons.Stat.Ann. 5552(d). The Judicial Code authorizes exceptions
to the limitations period in child sexual abuse cases, as stated above. See 42 Pa.Cons. to the limitations period in child sexual abuse cases, as stated above. See 42 Pa.Cons.
Stat.Ann. 5552(c)(3) and 5554. Stat.Ann. 5552(c)(3) and 5554.
1. Date of alleged offense 1. Date of alleged offense
It is the duty of the prosecution to fix the date when an alleged offense It is the duty of the prosecution to fix the date when an alleged offense
occurred with reasonable certainty.... Commonwealth v. Jette, 818 A.2d 533, occurred with reasonable certainty.... Commonwealth v. Jette, 818 A.2d 533,
535 (Pa. Super. 2003)(citation omitted), appeal denied, 574 Pa. 771, 833 A.2d 535 (Pa. Super. 2003)(citation omitted), appeal denied, 574 Pa. 771, 833 A.2d
141 (2003). In addition to triggering the statute of limitations, a defendant has a 141 (2003). In addition to triggering the statute of limitations, a defendant has a
right to be advised of the date when an offense is alleged to have been committed right to be advised of the date when an offense is alleged to have been committed
in order to provide him with sufficient notice to meet the charges and prepare a in order to provide him with sufficient notice to meet the charges and prepare a
defense. Commonwealth v. Gibbons, 567 Pa. 24, 784 A.2d 776 (2001). defense. Commonwealth v. Gibbons, 567 Pa. 24, 784 A.2d 776 (2001).
2. Permissible leeway 2. Permissible leeway
However, [d]u[e] process is not reducible to a mathematical formula, and However, [d]u[e] process is not reducible to a mathematical formula, and
the Commonwealth does not always need to prove a specific date of an alleged the Commonwealth does not always need to prove a specific date of an alleged
crime. Commonwealth v. Brooks, 7 A.3d 852, 857-858 (Pa. Super. 2010), appeal crime. Commonwealth v. Brooks, 7 A.3d 852, 857-858 (Pa. Super. 2010), appeal
denied, 610 Pa. 614, 21 A.3d 1189 (2011). Additionally, indictments must be read denied, 610 Pa. 614, 21 A.3d 1189 (2011). Additionally, indictments must be read
in a common sense manner and are not to be construed in an overly technical in a common sense manner and are not to be construed in an overly technical
sense. Commonwealth v. Einhorn, 911 A.2d 960, 978 (Pa. Super. 2006), appeal sense. Commonwealth v. Einhorn, 911 A.2d 960, 978 (Pa. Super. 2006), appeal
denied, 591 Pa. 723, 920 A.2d 831 (2007). Permissible leeway regarding the denied, 591 Pa. 723, 920 A.2d 831 (2007). Permissible leeway regarding the
date provided varies with, inter alia, the nature of the crime and the rights of the date provided varies with, inter alia, the nature of the crime and the rights of the
accused. Id., 911 A.2d at 978. accused. Id., 911 A.2d at 978.
However, the leeway cases predominantly reflect issues with alleged However, the leeway cases predominantly reflect issues with alleged
deficiencies in the criminal complaints or informations. The Commonwealth is deficiencies in the criminal complaints or informations. The Commonwealth is
always under an obligation to alleged offenses or conduct which likely occurred always under an obligation to alleged offenses or conduct which likely occurred
within the relevant statute of limitations. within the relevant statute of limitations.
Defenses Defenses
Appellate cases establish that the Commonwealth must be afforded Appellate cases establish that the Commonwealth must be afforded
broad latitude when attempting to fix the date of offenses which involve a broad latitude when attempting to fix the date of offenses which involve a
continuous course of criminal conduct . . . This is especially true when the case continuous course of criminal conduct . . . This is especially true when the case
involves sexual offenses against a child victim. Commonwealth v. Brooks, 7 A.3d involves sexual offenses against a child victim. Commonwealth v. Brooks, 7 A.3d
at 858 (citations omitted); Commonwealth v. Jette, 818 A.2d 533, 535 (Pa. Super. at 858 (citations omitted); Commonwealth v. Jette, 818 A.2d 533, 535 (Pa. Super.
2003), appeal denied, 574 Pa. 771, 833 A.2d 141 (2003)(the Commonwealth 2003), appeal denied, 574 Pa. 771, 833 A.2d 141 (2003)(the Commonwealth
must be allowed a reasonable measure of flexibility when faced with the special must be allowed a reasonable measure of flexibility when faced with the special
difficulties involved in ascertaining the date of an assault upon a young child.). difficulties involved in ascertaining the date of an assault upon a young child.).
Pa.R.Crim.P. 560 provides that the information must provide, inter alia: Pa.R.Crim.P. 560 provides that the information must provide, inter alia:
the date when the offense is alleged to have been the date when the offense is alleged to have been
committed if the precise date is known, and the day committed if the precise date is known, and the day
of the week if it is an essential element of the offense of the week if it is an essential element of the offense
charged, provided that if the precise date is not known charged, provided that if the precise date is not known
or if the offense is a continuing one, an allegation that it or if the offense is a continuing one, an allegation that it
was committed on or about any date within the period was committed on or about any date within the period
fixed by the statute of limitations shall be sufficient . fixed by the statute of limitations shall be sufficient .
Therefore, it is sufficient for the Commonwealth to provide in the information, Therefore, it is sufficient for the Commonwealth to provide in the information,
if the precise date of an offense is not known, an allegation that the offense if the precise date of an offense is not known, an allegation that the offense
was committed on or about any date within the period fixed by the statute of was committed on or about any date within the period fixed by the statute of
limitations. See Commonwealth v. Brooks, 7 A.3d at 858. limitations. See Commonwealth v. Brooks, 7 A.3d at 858.
G. Commencement of Prosecution G. Commencement of Prosecution
Section 5552 of the Judicial Code requires that a prosecution be commenced prior Section 5552 of the Judicial Code requires that a prosecution be commenced prior
to the expiration of the applicable statute of limitations. [A] prosecution is commenced to the expiration of the applicable statute of limitations. [A] prosecution is commenced
either when an indictment is found or an information under section 8931(b) (relating either when an indictment is found or an information under section 8931(b) (relating
to indictment and information) is issued, or when a warrant, summons or citation is to indictment and information) is issued, or when a warrant, summons or citation is
issued, if such warrant, summons or citation is executed without unreasonable delay. issued, if such warrant, summons or citation is executed without unreasonable delay.
42 Pa.Cons.Stat.Ann. 5552(e). 42 Pa.Cons.Stat.Ann. 5552(e).
H. Commencement of Prosecution: Invasion of Privacy H. Commencement of Prosecution: Invasion of Privacy
Under Pennsylvania law, it is a criminal offense to [v]iew or photograph a Under Pennsylvania law, it is a criminal offense to [v]iew or photograph a
person without that persons knowledge or consent while that person is in a state person without that persons knowledge or consent while that person is in a state
of full or partial nudity and is in a place where that person would have a reasonable of full or partial nudity and is in a place where that person would have a reasonable
expectation of privacy. 18 Pa.Cons.Stat.Ann. 7507.1(a)(1). It also prohibits the filming expectation of privacy. 18 Pa.Cons.Stat.Ann. 7507.1(a)(1). It also prohibits the filming
of the intimate parts, whether or not covered by clothing of another without that persons of the intimate parts, whether or not covered by clothing of another without that persons
knowledge and consent, Id. at 7507.1(a)(2), or any transfer of these types of images, knowledge and consent, Id. at 7507.1(a)(2), or any transfer of these types of images,
Id. at 7507.1(a)(3). Id. at 7507.1(a)(3).
Notwithstanding the above noted provisions regarding the commencement of Notwithstanding the above noted provisions regarding the commencement of
the limitations period for most crimes, a prosecution for a violation of 18 Pa.Cons.Stat. the limitations period for most crimes, a prosecution for a violation of 18 Pa.Cons.Stat.
Defenses Defenses
Ann. 7507.1, Invasion of Privacy, must be commenced within the following periods: Ann. 7507.1, Invasion of Privacy, must be commenced within the following periods:
Typical commencement date: two years from the date the Typical commencement date: two years from the date the
offense occurred. offense occurred.
Tolling of commencement date: if the victim did not realize at Tolling of commencement date: if the victim did not realize at
the time that there was an offense, within three years of the the time that there was an offense, within three years of the
time the victim first learns of the offense. time the victim first learns of the offense.
18 Pa.Cons.Stat.Ann. 7507.1(c). 18 Pa.Cons.Stat.Ann. 7507.1(c).
5.12 DUE PROCESS CLAIM OF PRE-ARREST DELAY 5.12 DUE PROCESS CLAIM OF PRE-ARREST DELAY
In Commonwealth v. Louden, 569 Pa. 245, 803 A.2d 1181 (2002), the In Commonwealth v. Louden, 569 Pa. 245, 803 A.2d 1181 (2002), the
Pennsylvania Supreme Court stated that even if charges are filed within the limitations Pennsylvania Supreme Court stated that even if charges are filed within the limitations
period, a defendant may nevertheless seek dismissal of the charges if he can establish period, a defendant may nevertheless seek dismissal of the charges if he can establish
that the delay in filing the charges has denied him due process of law. Id., 569 Pa. at that the delay in filing the charges has denied him due process of law. Id., 569 Pa. at
250, 803 A.2d at 1184. In such a case, the defendant must establish: (1) actual prejudice 250, 803 A.2d at 1184. In such a case, the defendant must establish: (1) actual prejudice
caused by the delay, and (2) the Commonwealths reasons for the inordinate delay were caused by the delay, and (2) the Commonwealths reasons for the inordinate delay were
improper. Id. improper. Id.
The defendant suffers actual prejudice if he can prove that the pre-arrest delay The defendant suffers actual prejudice if he can prove that the pre-arrest delay
prejudiced his ability to defend himself against the Commonwealths charges in such a prejudiced his ability to defend himself against the Commonwealths charges in such a
way that affected the disposition of the criminal proceedings. Commonwealth v. Scher, way that affected the disposition of the criminal proceedings. Commonwealth v. Scher,
569 Pa. 284, 314, 803 A.2d 1204, 1222 (2002), cert. denied, 538 U.S. 908, 123 S.Ct. 1488, 569 Pa. 284, 314, 803 A.2d 1204, 1222 (2002), cert. denied, 538 U.S. 908, 123 S.Ct. 1488,
155 L.Ed. 2d 228 (2003). As the Pennsylvania Supreme Court stated in Scher: 155 L.Ed. 2d 228 (2003). As the Pennsylvania Supreme Court stated in Scher:
[W]e hold that in order to prevail on a due process claim based [W]e hold that in order to prevail on a due process claim based
on pre-arrest delay, the defendant must first show that the delay on pre-arrest delay, the defendant must first show that the delay
caused him actual prejudice, that is, substantially impaired his caused him actual prejudice, that is, substantially impaired his
or her ability to defend against the charges. The court must then or her ability to defend against the charges. The court must then
examine all of the circumstances to determine the validity of the examine all of the circumstances to determine the validity of the
Commonwealths reasons for the delay. Only in situations where Commonwealths reasons for the delay. Only in situations where
the evidence shows that the delay was the product of intentional, the evidence shows that the delay was the product of intentional,
bad faith, or reckless conduct by the prosecution, however, will bad faith, or reckless conduct by the prosecution, however, will
we find a violation of due process. Negligence in the conduct of we find a violation of due process. Negligence in the conduct of
a criminal investigation, without more, will not be sufficient to a criminal investigation, without more, will not be sufficient to
prevail on a due process claim based on pre-arrest delay. prevail on a due process claim based on pre-arrest delay.
Scher, 569 Pa. at 313-314, 803 A.2d 1221-1222 (footnote omitted). Scher, 569 Pa. at 313-314, 803 A.2d 1221-1222 (footnote omitted).
Defenses Defenses
5.13 TAINT 5.13 TAINT
In reference to testimonial competency, taint is a defense raised by way of In reference to testimonial competency, taint is a defense raised by way of
challenging complaints of sexual abuse made by young children. The Pennsylvania challenging complaints of sexual abuse made by young children. The Pennsylvania
Supreme Court has defined taint as Supreme Court has defined taint as
[T]he implantation of false memories or distortion of actual [T]he implantation of false memories or distortion of actual
memories through improper and suggestive interview techniques memories through improper and suggestive interview techniques
.... ....
Commonwealth v. Delbridge (Delbridge I), 578 Pa. 641, 647, 855 A.2d 27, 30 (2003). Commonwealth v. Delbridge (Delbridge I), 578 Pa. 641, 647, 855 A.2d 27, 30 (2003).
An allegation of taint is a legitimate question for examination in cases involving An allegation of taint is a legitimate question for examination in cases involving
complaints of sexual abuse made by young children. Id., 578 Pa. at 661, 855 A.2d at complaints of sexual abuse made by young children. Id., 578 Pa. at 661, 855 A.2d at
39.20 The age when taint is no longer available is when the complainant reaches 39.20 The age when taint is no longer available is when the complainant reaches
fourteen years old; at fourteen years, the witness is entitled to the same presumption of fourteen years old; at fourteen years, the witness is entitled to the same presumption of
competence as an adult witness. Commonwealth v. McLaurin, 45 A.3d 1131, 11140 n. competence as an adult witness. Commonwealth v. McLaurin, 45 A.3d 1131, 11140 n.
3(Pa. Super. 2012). 3(Pa. Super. 2012).
Furthermore, in Commonwealth v. Moore, 980 A.2d 647 (Pa. Super. 2009), Furthermore, in Commonwealth v. Moore, 980 A.2d 647 (Pa. Super. 2009),
appeal denied, 605 Pa. 711, 991 A.2d 311 (2010), the Superior Court reiterated that the appeal denied, 605 Pa. 711, 991 A.2d 311 (2010), the Superior Court reiterated that the
critical age for purposes of conducting a taint hearing is not the age at the time of the critical age for purposes of conducting a taint hearing is not the age at the time of the
crime but the age at the time of trial. Id. at 648 & 652. crime but the age at the time of trial. Id. at 648 & 652.
The test for competency of a minor witness or victim has been well established: The test for competency of a minor witness or victim has been well established:
Every witness is presumed competent. A party who challenges Every witness is presumed competent. A party who challenges
the competency of a minor witness must prove by clear and the competency of a minor witness must prove by clear and
convincing evidence that the witness lacks the minimal capacity convincing evidence that the witness lacks the minimal capacity
... (1) to communicate, (2) to observe an event and accurately ... (1) to communicate, (2) to observe an event and accurately
recall that observation, and (3) to understand the necessity to recall that observation, and (3) to understand the necessity to
speak the truth. speak the truth.
Commonwealth v. Page, 59 A.3d 1118, 1129 (Pa. Super. 2013), appeal denied, --- Pa. Commonwealth v. Page, 59 A.3d 1118, 1129 (Pa. Super. 2013), appeal denied, --- Pa.
---, 80 A.3d 776 (2013). Furthermore, [a] childs competency to testify is a threshold ---, 80 A.3d 776 (2013). Furthermore, [a] childs competency to testify is a threshold
legal issue that a trial court must decide, and an appellate court will not disturb its legal issue that a trial court must decide, and an appellate court will not disturb its
determination absent an abuse of discretion. Commonwealth v. Washington, 554 Pa. determination absent an abuse of discretion. Commonwealth v. Washington, 554 Pa.
559, 563, 722 A.2d 643, 646 (1998) (citation omitted & emphasis added). 559, 563, 722 A.2d 643, 646 (1998) (citation omitted & emphasis added).
Within the three-part test described above from Commonwealth v. Page, an Within the three-part test described above from Commonwealth v. Page, an
allegation of taint speaks to the second prong: whether the child witness has the minimal allegation of taint speaks to the second prong: whether the child witness has the minimal
capacity to observe an occurrence itself and the capacity of remembering what it is that capacity to observe an occurrence itself and the capacity of remembering what it is that
the witness is called upon to testify about. See Commonwealth v. Pena, 31 A.3d 704, 707 the witness is called upon to testify about. See Commonwealth v. Pena, 31 A.3d 704, 707
20 In Commonwealth v. Judd, 897 A.2d 1224 (Pa. Super. 2006), appeal denied, 590 Pa. 675, 912 A.2d 1291 (2006), the court held that a 20 In Commonwealth v. Judd, 897 A.2d 1224 (Pa. Super. 2006), appeal denied, 590 Pa. 675, 912 A.2d 1291 (2006), the court held that a
sexual abuse victim of fifteen years of age could not be the subject of an allegation of taint but rather any attack on her testimony went sexual abuse victim of fifteen years of age could not be the subject of an allegation of taint but rather any attack on her testimony went
to questions of credibility. 897 A.2d at 1229. to questions of credibility. 897 A.2d at 1229.
Defenses Defenses
(Pa. Super. 2011). The challenge must be supported by clear and convincing evidence. (Pa. Super. 2011). The challenge must be supported by clear and convincing evidence.
Commonwealth v. Lukowich, 875 A.2d 1169, 1173 (Pa. Super. 2005), appeal denied, 584 Commonwealth v. Lukowich, 875 A.2d 1169, 1173 (Pa. Super. 2005), appeal denied, 584
Pa. 706, 885 A.2d 41 (2005). Pa. 706, 885 A.2d 41 (2005).
Where an allegation of taint is made before trial, the appropriate venue for Where an allegation of taint is made before trial, the appropriate venue for
investigation into such a claim is a competency hearing. Delbridge I, 578 Pa. at 664, investigation into such a claim is a competency hearing. Delbridge I, 578 Pa. at 664,
855 A.2d at 40. Areas of review concern the competency of the minor victim versus the 855 A.2d at 40. Areas of review concern the competency of the minor victim versus the
immaturity of the witness: immaturity of the witness:
The capacity of young children to testify has always been a concern The capacity of young children to testify has always been a concern
as their immaturity can impact their ability to meet the minimal as their immaturity can impact their ability to meet the minimal
legal requirements of competency. Common experience informs legal requirements of competency. Common experience informs
us that children are, by their very essence, fanciful creatures who us that children are, by their very essence, fanciful creatures who
have difficulty distinguishing fantasy from reality; who when have difficulty distinguishing fantasy from reality; who when
asked a question want to give the right answer, the answer that asked a question want to give the right answer, the answer that
pleases the interrogator; who are subject to repeat ideas placed in pleases the interrogator; who are subject to repeat ideas placed in
their heads by others; and who have limited capacity for accurate their heads by others; and who have limited capacity for accurate
memory. memory.
Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006), appeal denied, 590 Pa. Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006), appeal denied, 590 Pa.
675, 912 A.2d 1291 (2006) (quoting Delbridge I, 578 Pa. at 662, 855 A.2d at 39). 675, 912 A.2d 1291 (2006) (quoting Delbridge I, 578 Pa. at 662, 855 A.2d at 39).
A. The Taint Hearing A. The Taint Hearing
In order for the court to investigate the issue of taint at a competency hearing, In order for the court to investigate the issue of taint at a competency hearing,
the moving party must come forward with evidence of taint. Once the moving party the moving party must come forward with evidence of taint. Once the moving party
comes forward with some evidence of taint, the court must expand the scope of the comes forward with some evidence of taint, the court must expand the scope of the
competency hearing to investigate that specific question. The party alleging taint bears competency hearing to investigate that specific question. The party alleging taint bears
the burden of production of some evidence of taint as well as the ultimate burden the burden of production of some evidence of taint as well as the ultimate burden
of persuasion to show taint by clear and convincing evidence after any hearing on the of persuasion to show taint by clear and convincing evidence after any hearing on the
matter. Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006), appeal denied, matter. Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006), appeal denied,
590 Pa. 675, 912 A.2d 1291 (2006) 590 Pa. 675, 912 A.2d 1291 (2006)
When determining whether a defendant has presented some evidence of When determining whether a defendant has presented some evidence of
taint, the court must consider the totality of the circumstances surrounding the childs taint, the court must consider the totality of the circumstances surrounding the childs
allegations. Delbridge I, 578 Pa. at 664, 855 A.2d at 41. allegations. Delbridge I, 578 Pa. at 664, 855 A.2d at 41.
Some of the factors that are relevant in this analysis are: Some of the factors that are relevant in this analysis are:
(1) the age of the child; (1) the age of the child;
(2) the existence of a motive hostile to the defendant on the part of (2) the existence of a motive hostile to the defendant on the part of
the childs primary custodian; the childs primary custodian;
(3) the possibility that the childs primary custodian is unusually (3) the possibility that the childs primary custodian is unusually
likely to read abuse into normal interaction; likely to read abuse into normal interaction;
(4) whether the child was subjected to repeated interviews by (4) whether the child was subjected to repeated interviews by
Defenses Defenses
various adults in positions of authority; various adults in positions of authority;

(5) whether an interested adult was present during the course of any (5) whether an interested adult was present during the course of any
interviews; and interviews; and
(6) the existence of independent evidence regarding the interview (6) the existence of independent evidence regarding the interview
techniques employed. techniques employed.
675, 912 A.2d 1291 (2006) 675, 912 A.2d 1291 (2006)
In Commonwealth v. Davis, 939 A.2d 905 (Pa. Super. 2007), the Superior Court In Commonwealth v. Davis, 939 A.2d 905 (Pa. Super. 2007), the Superior Court
affirmed the trial courts decision, after a competency hearing, that the youthful victim affirmed the trial courts decision, after a competency hearing, that the youthful victim
lacked the minimal capacity to testify, especially in light of the taint effect produced by lacked the minimal capacity to testify, especially in light of the taint effect produced by
leading and suggestive questioning by the police. Specifically, the Superior Court found: leading and suggestive questioning by the police. Specifically, the Superior Court found:
The problems with the testimony are twofold: first, J.D.s The problems with the testimony are twofold: first, J.D.s
independent recollection of the incident was extremely limited; independent recollection of the incident was extremely limited;
and second, the suggestive technique and content of the and second, the suggestive technique and content of the
interviews provided clear and convincing evidence that J.D.s interviews provided clear and convincing evidence that J.D.s
later recollections were tainted and a product of coercion, not of later recollections were tainted and a product of coercion, not of
his own memory. his own memory.
939 A.2d at 910. 939 A.2d at 910.
Chapter 6 Chapter 6
PRETRIAL PRETRIAL
Pretrial Pretrial
Chapter Six Table of Contents Chapter Six Table of Contents

Pretrial Pretrial
6.1 CHAPTER OVERVIEW ................................................................................................. 4 6.1 CHAPTER OVERVIEW ................................................................................................. 4
6.2 BAIL ........................................................................................................................ 4 6.2 BAIL ........................................................................................................................ 4
A. Historical Context and Current Practice ................................................................. 4 A. Historical Context and Current Practice ................................................................. 4
B. Bail and Pa.R.Crim.P. 600 ............................................................................................... 6 B. Bail and Pa.R.Crim.P. 600 ............................................................................................... 6
C. Establishment of Bail Before Verdict......................................................................... 8 C. Establishment of Bail Before Verdict......................................................................... 8
D. Factors for Bail Consideration ..................................................................................... 9 D. Factors for Bail Consideration ..................................................................................... 9
E. Bail Conditions..................................................................................................................10 E. Bail Conditions..................................................................................................................10
1. Authority to add conditions ................................................................................10 1. Authority to add conditions ................................................................................10
2. Authority to add conditions Rule 600 .........................................................11 2. Authority to add conditions Rule 600 .........................................................11
3. Selected available conditions .............................................................................12 3. Selected available conditions .............................................................................12
F. Denial of Bail......................................................................................................................14 F. Denial of Bail......................................................................................................................14
G. Modification .......................................................................................................................14 G. Modification .......................................................................................................................14
1. By Magisterial District Judge ..............................................................................14 1. By Magisterial District Judge ..............................................................................14
2. By Trial Court ............................................................................................................14 2. By Trial Court ............................................................................................................14
H. Bail After Conviction ......................................................................................................15 H. Bail After Conviction ......................................................................................................15
1. Before sentencing ....................................................................................................15 1. Before sentencing ....................................................................................................15
2. After sentencing .......................................................................................................15 2. After sentencing .......................................................................................................15
3. Modification after conviction or sentencing ................................................16 3. Modification after conviction or sentencing ................................................16
I. Violation of Condition of Bail .....................................................................................16 I. Violation of Condition of Bail .....................................................................................16
1. Revocation ...................................................................................................................16 1. Revocation ...................................................................................................................16
2. Forfeiture......................................................................................................................16 2. Forfeiture......................................................................................................................16
J. Appellate Review .............................................................................................................18 J. Appellate Review .............................................................................................................18
6.3 NO CONTACT ORDERS ...........................................................................................................19 6.3 NO CONTACT ORDERS ...........................................................................................................19
A. The Sexual Violence Victim Protection Act ..........................................................19 A. The Sexual Violence Victim Protection Act ..........................................................19
1. Procedures..................................................................................................................21 1. Procedures..................................................................................................................21
B. Pennsylvanias Address Confidentiality Program ..............................................21 B. Pennsylvanias Address Confidentiality Program ..............................................21
C. The Protection from Abuse Act..................................................................................23 C. The Protection from Abuse Act..................................................................................23
6.4 HUMAN IMMUNODEFICIENCY VIRUS (HIV) TESTING ....................................24 6.4 HUMAN IMMUNODEFICIENCY VIRUS (HIV) TESTING ....................................24
6.5 VENEREAL DISEASE TESTING ..........................................................................................25 6.5 VENEREAL DISEASE TESTING ..........................................................................................25
6.6 DISCOVERY ...................................................................................................................................26 6.6 DISCOVERY ...................................................................................................................................26
A. Disclosures that are Mandatory on the Commonwealth ................................26 A. Disclosures that are Mandatory on the Commonwealth ................................26
1. Exculpatory evidence.............................................................................................27 1. Exculpatory evidence.............................................................................................27
Pretrial Pretrial
2. Confessions or inculpatory statements..........................................................27 2. Confessions or inculpatory statements..........................................................27

3. Prior criminal record of the defendant ..........................................................27 3. Prior criminal record of the defendant ..........................................................27
4. Identifications of the defendant ........................................................................28 4. Identifications of the defendant ........................................................................28
5. Results of scientific tests and other expert evaluations..........................28 5. Results of scientific tests and other expert evaluations..........................28
6. Tangible evidence ....................................................................................................29 6. Tangible evidence ....................................................................................................29
7. Transcripts and recordings of electronic surveillance ............................29 7. Transcripts and recordings of electronic surveillance ............................29
B. Disclosures by the Commonwealth at the Discretion of the Court ............29 B. Disclosures by the Commonwealth at the Discretion of the Court ............29
1. Names and addresses of eyewitnesses ..........................................................30 1. Names and addresses of eyewitnesses ..........................................................30
2. Statements of eyewitnesses ................................................................................30 2. Statements of eyewitnesses ................................................................................30
3. Statements of co-defendants, co-conspirators or accomplices ...........31 3. Statements of co-defendants, co-conspirators or accomplices ...........31
4. Other evidence specifically identified by the defendant ........................31 4. Other evidence specifically identified by the defendant ........................31
5. Experts the Commonwealth intends to call at trial ..................................31 5. Experts the Commonwealth intends to call at trial ..................................31
C. Mandatory Disclosures by the Defendant ............................................................31 C. Mandatory Disclosures by the Defendant ............................................................31
1. Alibi and insanity defense....................................................................................32 1. Alibi and insanity defense....................................................................................32
D. Disclosures by the Defendant at the Discretion of the Court .......................32 D. Disclosures by the Defendant at the Discretion of the Court .......................32
1. Results or reports of physical or mental 1. Results or reports of physical or mental
examinations and scientific tests .....................................................................32 examinations and scientific tests .....................................................................32
2. Names and addresses of eyewitnesses ..........................................................32 2. Names and addresses of eyewitnesses ..........................................................32
3. Experts the defendant intends to call at trial ..............................................33 3. Experts the defendant intends to call at trial ..............................................33
E. Remedies .............................................................................................................................33 E. Remedies .............................................................................................................................33
1. Order production or inspection ........................................................................33 1. Order production or inspection ........................................................................33
2. Grant of continuance ..............................................................................................34 2. Grant of continuance ..............................................................................................34
3. Prohibit introduction of evidence not disclosed ........................................34 3. Prohibit introduction of evidence not disclosed ........................................34
4. Any other remedy the court deems just under the circumstances ....34 4. Any other remedy the court deems just under the circumstances ....34
F. Protective Orders .............................................................................................................35 F. Protective Orders .............................................................................................................35
G. Work Product ....................................................................................................................35 G. Work Product ....................................................................................................................35
6.7 OMNIBUS PRE-TRIAL MOTIONS.....................................................................................36 6.7 OMNIBUS PRE-TRIAL MOTIONS.....................................................................................36
A. Types of Relief ...................................................................................................................36 A. Types of Relief ...................................................................................................................36
1. Continuance.........................................................................................................36 1. Continuance.........................................................................................................36
2. Severance, Joinder, or Consolidation ........................................................36 2. Severance, Joinder, or Consolidation ........................................................36
(a) Standards ....................................................................................................36 (a) Standards ....................................................................................................36
3. Suppression of Evidence ................................................................................37 3. Suppression of Evidence ................................................................................37
(a) The Lustful Disposition Exception ................................................38 (a) The Lustful Disposition Exception ................................................38
(b) Federal Rules of Evidence ....................................................................39 (b) Federal Rules of Evidence ....................................................................39
4. Psychiatric Examination ................................................................................41 4. Psychiatric Examination ................................................................................41
5. Quashal of Information...................................................................................42 5. Quashal of Information...................................................................................42
Pretrial Pretrial
6. Change of Venue or Venire ............................................................................42 6. Change of Venue or Venire ............................................................................42

7. Disqualification of Judge ................................................................................42 7. Disqualification of Judge ................................................................................42
8. Appointment of an Investigator..................................................................43 8. Appointment of an Investigator..................................................................43
9. Pre-Trial Conference ........................................................................................43 9. Pre-Trial Conference ........................................................................................43
10. Double Jeopardy ................................................................................................43 10. Double Jeopardy ................................................................................................43
11. Statute of Limitations ......................................................................................43 11. Statute of Limitations ......................................................................................43
12. Writ of Habeas Corpus ....................................................................................43 12. Writ of Habeas Corpus ....................................................................................43
B. Time for Filing...................................................................................................................43 B. Time for Filing...................................................................................................................43
C. Disposition of Motion ....................................................................................................44 C. Disposition of Motion ....................................................................................................44
1. Appellate Review ..............................................................................................44 1. Appellate Review ..............................................................................................44
6.8 EVIDENCE OF VICTIMS PAST SEXUAL CONDUCT ..............................................44 6.8 EVIDENCE OF VICTIMS PAST SEXUAL CONDUCT ..............................................44
A. Pennsylvanias Rape Shield Law................................................................................44 A. Pennsylvanias Rape Shield Law................................................................................44
1. Prohibited Evidence.........................................................................................44 1. Prohibited Evidence.........................................................................................44
2. Procedure .............................................................................................................45 2. Procedure .............................................................................................................45
B. Purpose of Rape Shield Statute..................................................................................45 B. Purpose of Rape Shield Statute..................................................................................45
C. Motive, Prejudice or Bias - Admissibility...............................................................47 C. Motive, Prejudice or Bias - Admissibility...............................................................47
1. Necessity of specific proffer .........................................................................47 1. Necessity of specific proffer .........................................................................47
2. In Camera hearing.............................................................................................48 2. In Camera hearing.............................................................................................48
3. Examples...............................................................................................................48 3. Examples...............................................................................................................48
D. Evidence that Negates the Sexual Conduct ...........................................................49 D. Evidence that Negates the Sexual Conduct ...........................................................49
E. Nonconsensual Sexual Conduct .................................................................................50 E. Nonconsensual Sexual Conduct .................................................................................50
6.9 PRIVILEGES ...................................................................................................................................50 6.9 PRIVILEGES ...................................................................................................................................50
A. Privileges .............................................................................................................................50 A. Privileges .............................................................................................................................50
B. Medical or Mental Health Professional Records ................................................51 B. Medical or Mental Health Professional Records ................................................51
1. Patient Physician Privilege ........................................................................51 1. Patient Physician Privilege ........................................................................51
2. Disease Prevention and Control Act .........................................................51 2. Disease Prevention and Control Act .........................................................51
3. Patient Psychiatrist/Psychologist Privilege .......................................52 3. Patient Psychiatrist/Psychologist Privilege .......................................52
C. Sexual Assault Counselor Privilege ..........................................................................53 C. Sexual Assault Counselor Privilege ..........................................................................53
1. Rape Counselors ................................................................................................54 1. Rape Counselors ................................................................................................54
2. The Sexual Assault Counselor Privilege ..................................................54 2. The Sexual Assault Counselor Privilege ..................................................54
D. Children and Youth Records The Child Protective Services Law .............57 D. Children and Youth Records The Child Protective Services Law .............57
1. When Defendant is Classified as a Subject of a Report .................60 1. When Defendant is Classified as a Subject of a Report .................60
2. When Defendant is Not Classified under 2. When Defendant is Not Classified under
the Child Protective Services Law ..............................................................62 the Child Protective Services Law ..............................................................62
Pretrial Pretrial
Chapter Six Chapter Six

Pretrial Pretrial
This chapter, Pretrial, discusses the balance struck in Pennsylvania between This chapter, Pretrial, discusses the balance struck in Pennsylvania between
protecting the rights of an accused and advancing the interests of the state during the protecting the rights of an accused and advancing the interests of the state during the
time period between charging the defendant and the start of trial. Sections 6.2 and 6.3 time period between charging the defendant and the start of trial. Sections 6.2 and 6.3
address the powers of the state to ensure that the defendant appears for trial and place address the powers of the state to ensure that the defendant appears for trial and place
restrictions on the accused prior to trial. Section 6.3 discusses the new law, the Sexual restrictions on the accused prior to trial. Section 6.3 discusses the new law, the Sexual
Violence Victim Protection Act, 42 Pa.Cons.Stat.Ann. 62A01 62A20, which can be Violence Victim Protection Act, 42 Pa.Cons.Stat.Ann. 62A01 62A20, which can be
utilized by a victim of sexual abuse, regardless of whether criminal charges are filed, to utilized by a victim of sexual abuse, regardless of whether criminal charges are filed, to
avoid future contact with a perpetrator. avoid future contact with a perpetrator.
Section 6.4, HIV Testing, and Section 6.5, Venereal Disease Testing, review the Section 6.4, HIV Testing, and Section 6.5, Venereal Disease Testing, review the
authority of the trial court to order the defendant to submit to tests prior to trial. authority of the trial court to order the defendant to submit to tests prior to trial.
Section 6.6 details the rights and duties of the state and the accused during pretrial Section 6.6 details the rights and duties of the state and the accused during pretrial
discovery. The issues that arise during pretrial motion practice, and the availability of discovery. The issues that arise during pretrial motion practice, and the availability of
certain motions, are discussed in Section 6.7. certain motions, are discussed in Section 6.7.
Section 6.8 discusses the admissibility of evidence of the victims past sexual Section 6.8 discusses the admissibility of evidence of the victims past sexual
conduct, under the Rape Shield Law, which should be a decision which occurs prior to conduct, under the Rape Shield Law, which should be a decision which occurs prior to
trial. trial.
Lastly, Section 6.9 addresses statutory privileges which may prohibit a defendants Lastly, Section 6.9 addresses statutory privileges which may prohibit a defendants
right to obtain records, usually about the victim, prior to trial. right to obtain records, usually about the victim, prior to trial.
6.2 BAIL 6.2 BAIL
The following section discusses bail and its applicability to defendants charged The following section discusses bail and its applicability to defendants charged
with misdemeanor and felony sexual violence offenses. No specific provisions are made with misdemeanor and felony sexual violence offenses. No specific provisions are made
under Pennsylvania law regarding bail for those accused of sex offenses. This section under Pennsylvania law regarding bail for those accused of sex offenses. This section
will therefore set out the rules and procedures that are generally applicable to the issue will therefore set out the rules and procedures that are generally applicable to the issue
of pretrial bail. of pretrial bail.
A. Historical Context and Current Practice A. Historical Context and Current Practice
Historically, the Pennsylvania Constitution granted every defendant a right to Historically, the Pennsylvania Constitution granted every defendant a right to
bail with the exception of those who were charged with crimes punishable by death. bail with the exception of those who were charged with crimes punishable by death.
See Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972). Furthermore, See Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972). Furthermore,
the Pennsylvania Constitution was interpreted to prohibit preventative detentions for the Pennsylvania Constitution was interpreted to prohibit preventative detentions for
Pretrial Pretrial
non-capital crimes. Id. Under this interpretation, the only proper consideration in non-capital crimes. Id. Under this interpretation, the only proper consideration in
setting bail for non-capital crimes was ensuring the defendants presence at subsequent setting bail for non-capital crimes was ensuring the defendants presence at subsequent
proceedings. Id., 449 Pa. at 335-336, 296 A.2d at 834-835. proceedings. Id., 449 Pa. at 335-336, 296 A.2d at 834-835.
However, in 1998, Article 1, Section 14 was amended to read as follows: However, in 1998, Article 1, Section 14 was amended to read as follows:
Prisoners to be bailable; habeas corpus Prisoners to be bailable; habeas corpus
All prisoners shall be bailable by sufficient sureties, unless for All prisoners shall be bailable by sufficient sureties, unless for
capital offenses or for offenses for which the maximum sentence capital offenses or for offenses for which the maximum sentence
is life imprisonment or unless no condition or combination of is life imprisonment or unless no condition or combination of
conditions other than imprisonment will reasonably assure conditions other than imprisonment will reasonably assure
the safety of any person and the community when the proof the safety of any person and the community when the proof
is evident or presumption great; and the privilege of the writ of is evident or presumption great; and the privilege of the writ of
habeas corpus shall not be suspended, unless when in case of habeas corpus shall not be suspended, unless when in case of
rebellion or invasion the public safety may require it. rebellion or invasion the public safety may require it.
Pa. Const. Art. I, 14 (emphasis added).1 Pa. Const. Art. I, 14 (emphasis added).1
Accordingly, it is now within the bail authoritys power to deny bail if the Accordingly, it is now within the bail authoritys power to deny bail if the
bail authority determines that no condition or combination of conditions other than bail authority determines that no condition or combination of conditions other than
imprisonment will reasonably assure the safety of any person and the community. As imprisonment will reasonably assure the safety of any person and the community. As
stated by the Pennsylvania Supreme Court in Commonwealth v. Dixon, 589 Pa. 28, 43, stated by the Pennsylvania Supreme Court in Commonwealth v. Dixon, 589 Pa. 28, 43,
n. 12, 907 A.2d 468, 477, n.12 (2006), this constitutional provision supersedes the Rules n. 12, 907 A.2d 468, 477, n.12 (2006), this constitutional provision supersedes the Rules
of Criminal Procedure and provides any court with the authority to deny bail if release of Criminal Procedure and provides any court with the authority to deny bail if release
would endanger the safety of the public. would endanger the safety of the public.
In an apparent effort to comport with that amendment, Section 5701 of the In an apparent effort to comport with that amendment, Section 5701 of the
Judicial Code was amended in 2009, and now states: Judicial Code was amended in 2009, and now states:
5701. Right to bail 5701. Right to bail

All prisoners shall be bailable by sufficient sureties, unless: All prisoners shall be bailable by sufficient sureties, unless:
(1) for capital offenses or for offenses for which the maximum (1) for capital offenses or for offenses for which the maximum
sentence is life imprisonment; or sentence is life imprisonment; or
(2) no condition or combination of conditions other than (2) no condition or combination of conditions other than
imprisonment will reasonably assure the safety of any person imprisonment will reasonably assure the safety of any person
and the community when the proof is evident or presumption and the community when the proof is evident or presumption
great. great.
1 The amendment survived a constitutional challenge. See Grimaud v. Commonwealth, 581 Pa. 398, 865 A.2d 835 (2005). 1 The amendment survived a constitutional challenge. See Grimaud v. Commonwealth, 581 Pa. 398, 865 A.2d 835 (2005).
Pretrial Pretrial
The current version of Pa.R.Crim.P. 520, in recognition of Article I, Section 14 of The current version of Pa.R.Crim.P. 520, in recognition of Article I, Section 14 of
the Pennsylvania Constitution, provides that bail before verdict shall be set as permitted the Pennsylvania Constitution, provides that bail before verdict shall be set as permitted
by law. If bail is denied, the reasons must be stated in writing or on the record. by law. If bail is denied, the reasons must be stated in writing or on the record.
Rule 520. Bail Before Verdict Rule 520. Bail Before Verdict
(A) Bail before verdict shall be set in all cases as permitted by (A) Bail before verdict shall be set in all cases as permitted by
law. Whenever bail is refused, the bail authority shall state in law. Whenever bail is refused, the bail authority shall state in
writing or on the record the reasons for that determination. writing or on the record the reasons for that determination.
(B) A defendant may be admitted to bail on any day and at any (B) A defendant may be admitted to bail on any day and at any
time. time.
B. Bail and Pa.R.Crim.P. 600 B. Bail and Pa.R.Crim.P. 600
The prior version of Pa.R.Crim.P. 600(E) provided that any defendant held in The prior version of Pa.R.Crim.P. 600(E) provided that any defendant held in
excess of 180 days was entitled upon petition to immediate release on nominal bail. excess of 180 days was entitled upon petition to immediate release on nominal bail.
Although defendants attempted to argue that this provision took precedence over Although defendants attempted to argue that this provision took precedence over
Article I, Section 14s provision for denial of bail and bail conditions, two cases rejected Article I, Section 14s provision for denial of bail and bail conditions, two cases rejected
this contention. this contention.
In a case in which the defendant was charged with numerous sexually violent In a case in which the defendant was charged with numerous sexually violent
crimes, the Superior Court held that defendant was not entitled to release on nominal crimes, the Superior Court held that defendant was not entitled to release on nominal
bond under Pa.R.Crim.P. 600(E), given the Pennsylvania constitutional provision on bail, bond under Pa.R.Crim.P. 600(E), given the Pennsylvania constitutional provision on bail,
based upon the trial courts finding that no conditions of bail could assure the safety of based upon the trial courts finding that no conditions of bail could assure the safety of
the community. Commonwealth v. Jones, 899 A.2d 353 (Pa.Super. 2006). Although the the community. Commonwealth v. Jones, 899 A.2d 353 (Pa.Super. 2006). Although the
defendant had been charged with non-capital offenses, and had been held in pretrial defendant had been charged with non-capital offenses, and had been held in pretrial
incarceration for a period in excess of 180 days, it was permissible for the trial court to incarceration for a period in excess of 180 days, it was permissible for the trial court to
refuse bail; the trial courts finding that no condition or combination of conditions other refuse bail; the trial courts finding that no condition or combination of conditions other
than imprisonment will reasonably assure the safety of any person and the community than imprisonment will reasonably assure the safety of any person and the community
trumped the nominal-bond provision of Rule 600. Id. at 356. See also Commonwealth v. trumped the nominal-bond provision of Rule 600. Id. at 356. See also Commonwealth v.
Sloan, 589 Pa. 15, 27 n.10, 907 A.2d 460, 467 n. 10 (2006). Sloan, 589 Pa. 15, 27 n.10, 907 A.2d 460, 467 n. 10 (2006).
Furthermore, it was held that prior Pa.R.Crim.P. 600(E) did not bar a trial court Furthermore, it was held that prior Pa.R.Crim.P. 600(E) did not bar a trial court
from imposing non-monetary conditions, such as house arrest and electronic monitoring, from imposing non-monetary conditions, such as house arrest and electronic monitoring,
on a defendant who is entitled to nominal bail but might otherwise be denied release on a defendant who is entitled to nominal bail but might otherwise be denied release
under Article I, Section 1 of the Pennsylvania Constitution. Commonwealth v. Sloan, under Article I, Section 1 of the Pennsylvania Constitution. Commonwealth v. Sloan,
589 Pa. 15, 28, 907 A.2d 460, 468 (2006). 589 Pa. 15, 28, 907 A.2d 460, 468 (2006).
As stated by the Pennsylvania Supreme Court in Commonwealth v. Dixon, 589 As stated by the Pennsylvania Supreme Court in Commonwealth v. Dixon, 589
Pa. 28, 43, n. 12, 907 A.2d 468, 477, n.12 (2006): Pa. 28, 43, n. 12, 907 A.2d 468, 477, n.12 (2006):
A relatively recent amendment to Article I, Section 14 of the A relatively recent amendment to Article I, Section 14 of the
Pennsylvania Constitution permits courts to deny bail when no Pennsylvania Constitution permits courts to deny bail when no
condition or combination of conditions other than imprisonment condition or combination of conditions other than imprisonment
will reasonably assure the safety of any person in the community. will reasonably assure the safety of any person in the community.
Pretrial
The current version of Pa.R.Crim.P. 520, in recognition of Article I, Section 14 of

the Pennsylvania Constitution, provides that bail before verdict shall be set as permitted
by law. If bail is denied, the reasons must be stated in writing or on the record.
Rule 520. Bail Before Verdict
(A) Bail before verdict shall be set in all cases as permitted by

law. Whenever bail is refused, the bail authority shall state in
writing or on the record the reasons for that determination.
(B) A defendant may be admitted to bail on any day and at any

time.
B. Bail and Pa.R.Crim.P. 600
The prior version of Pa.R.Crim.P. 600(E) provided that any defendant held in
excess of 180 days was entitled upon petition to immediate release on nominal bail.
Although defendants attempted to argue that this provision took precedence over
Article I, Section 14s provision for denial of bail and bail conditions, two cases rejected
this contention.
In a case in which the defendant was charged with numerous sexually violent
crimes, the Superior Court held that defendant was not entitled to release on nominal
bond under Pa.R.Crim.P. 600(E), given the Pennsylvania constitutional provision on bail,
based upon the trial courts finding that no conditions of bail could assure the safety of
the community. Commonwealth v. Jones, 899 A.2d 353 (Pa.Super. 2006). Although the
defendant had been charged with non-capital offenses, and had been held in pretrial
incarceration for a period in excess of 180 days, it was permissible for the trial court to
refuse bail; the trial courts finding that no condition or combination of conditions other
than imprisonment will reasonably assure the safety of any person and the community
trumped the nominal-bond provision of Rule 600. Id. at 356. See also Commonwealth v.
Sloan, 589 Pa. 15, 27 n.10, 907 A.2d 460, 467 n. 10 (2006).
Furthermore, it was held that prior Pa.R.Crim.P. 600(E) did not bar a trial court
from imposing non-monetary conditions, such as house arrest and electronic monitoring,
on a defendant who is entitled to nominal bail but might otherwise be denied release
under Article I, Section 1 of the Pennsylvania Constitution. Commonwealth v. Sloan,
589 Pa. 15, 28, 907 A.2d 460, 468 (2006).
As stated by the Pennsylvania Supreme Court in Commonwealth v. Dixon, 589

Pa. 28, 43, n. 12, 907 A.2d 468, 477, n.12 (2006):
A relatively recent amendment to Article I, Section 14 of the

Pennsylvania Constitution permits courts to deny bail when no
condition or combination of conditions other than imprisonment
will reasonably assure the safety of any person in the community.
6 Chapter 6
Pretrial Pretrial
Pa. Const. Art. I, 14. This constitutional provision supersedes Pa. Const. Art. I, 14. This constitutional provision supersedes
the Rules of Criminal Procedure, and provides any court with the Rules of Criminal Procedure, and provides any court with
the authority to deny nominal bail after 180 days if release the authority to deny nominal bail after 180 days if release
would endanger the safety of any person. In this regard, in would endanger the safety of any person. In this regard, in
[Commonwealth v. Sloan, 589 Pa. 15, 907 A.2d 460 (2006)], a [Commonwealth v. Sloan, 589 Pa. 15, 907 A.2d 460 (2006)], a
companion case being filed simultaneously with this matter, we companion case being filed simultaneously with this matter, we
have held that when a defendant is released on nominal bail in have held that when a defendant is released on nominal bail in
accord with Rule 600(E), reasonable conditions can be imposed accord with Rule 600(E), reasonable conditions can be imposed
to ensure a defendants appearance at trial and to protect the to ensure a defendants appearance at trial and to protect the
public. The trial courts ability to deny bail altogether pursuant public. The trial courts ability to deny bail altogether pursuant
to Article I, Section 14, and its ability to set conditions for the to Article I, Section 14, and its ability to set conditions for the
release on nominal bail in accordance with our decision in Sloan release on nominal bail in accordance with our decision in Sloan
is protective of the public interest, while this case is protective of a is protective of the public interest, while this case is protective of a
defendants right to not be held indefinitely in pretrial detention. defendants right to not be held indefinitely in pretrial detention.
This strikes an appropriate balance between societys substantial This strikes an appropriate balance between societys substantial
interest in its safety and a confined defendants substantial right interest in its safety and a confined defendants substantial right
to not be indefinitely held in pretrial confinement. to not be indefinitely held in pretrial confinement.
Rule 600 now provides an exception to cases in which the defendant is not Rule 600 now provides an exception to cases in which the defendant is not
entitled to release on bail as provided by law . . . . Pa.R.Crim.P. 600(B). There also may entitled to release on bail as provided by law . . . . Pa.R.Crim.P. 600(B). There also may
be circumstances in which a defendant is not to be released on bail, or alternatively, if be circumstances in which a defendant is not to be released on bail, or alternatively, if
a defendant is entitled to nominal bail under this rule, nonmonetary conditions may be a defendant is entitled to nominal bail under this rule, nonmonetary conditions may be
imposed: imposed:
Rule 600. Prompt Trial Rule 600. Prompt Trial

... ...
(D) Remedies (D) Remedies

... ...
(2) Except in cases in which the defendant is not entitled to (2) Except in cases in which the defendant is not entitled to
release on bail as provided by law, when a defendant is held release on bail as provided by law, when a defendant is held
in pretrial incarceration beyond the time set forth in paragraph in pretrial incarceration beyond the time set forth in paragraph
(B), at any time before trial, the defendants attorney, or the (B), at any time before trial, the defendants attorney, or the
defendant if unrepresented, may file a written motion requesting defendant if unrepresented, may file a written motion requesting
that the defendant be released immediately on nominal bail that the defendant be released immediately on nominal bail
subject to any nonmonetary conditions of bail imposed by the subject to any nonmonetary conditions of bail imposed by the
court as permitted by law. A copy of the motion shall be served court as permitted by law. A copy of the motion shall be served
on the attorney for the Commonwealth concurrently with filing. on the attorney for the Commonwealth concurrently with filing.
The judge shall conduct a hearing on the motion. The judge shall conduct a hearing on the motion.
Pa.R.Crim.P. 600(D)(2)(emphasis added). Pa.R.Crim.P. 600(D)(2)(emphasis added).
Pretrial Pretrial
C. Establishment of Bail Before Verdict C. Establishment of Bail Before Verdict
At the preliminary arraignment, the issuing authority, typically a magisterial At the preliminary arraignment, the issuing authority, typically a magisterial
district judge, must inform the defendant of the type of release on bail as provided under district judge, must inform the defendant of the type of release on bail as provided under
the Rules of Criminal Procedure, Rules 523 to 536, as well as the conditions of bail. See the Rules of Criminal Procedure, Rules 523 to 536, as well as the conditions of bail. See
Pa.R.Crim.P. 540(F)((3). Pa.R.Crim.P. 540(F)((3).
If the defendant is detained, he shall be given an immediate and reasonable If the defendant is detained, he shall be given an immediate and reasonable
opportunity to post bail. See Pa.R.Crim.P. 540(H). If the defendant does not post bail, he opportunity to post bail. See Pa.R.Crim.P. 540(H). If the defendant does not post bail, he
shall be committed to jail as provided by law. shall be committed to jail as provided by law.
In accordance with Pa.R.Crim.P. 524, the MDJ must determine the type or In accordance with Pa.R.Crim.P. 524, the MDJ must determine the type or
combination of types of release reasonably necessary, to ensure that the defendant will combination of types of release reasonably necessary, to ensure that the defendant will
appear at all subsequent proceedings and comply with the conditions of the bail bond. appear at all subsequent proceedings and comply with the conditions of the bail bond.
Bail must be conditioned upon the defendants written agreement to appear and Bail must be conditioned upon the defendants written agreement to appear and
to comply with the conditions of the bail bond. to comply with the conditions of the bail bond.
The types of bail are: The types of bail are:
(1) ROR - Release On Recognizance: release is conditioned upon the (1) ROR - Release On Recognizance: release is conditioned upon the
defendants written agreement to appear and comply with all bail defendants written agreement to appear and comply with all bail
conditions;2 conditions;2
(2) Release on Nonmonetary Conditions: release is conditioned on the (2) Release on Nonmonetary Conditions: release is conditioned on the
defendants agreement to comply with any nonmonetary conditions defendants agreement to comply with any nonmonetary conditions
which the bail authority determines are reasonably necessary which the bail authority determines are reasonably necessary
to ensure the defendants appearance and compliance with the to ensure the defendants appearance and compliance with the
conditions of the bail bond a non-exhaustive list of conditions are conditions of the bail bond a non-exhaustive list of conditions are
listed in Rule 527(A);3 listed in Rule 527(A);3
(3) Release on Unsecured Bail Bond: release conditioned on the (3) Release on Unsecured Bail Bond: release conditioned on the
defendants written agreement to be liable for a fixed sum of money defendants written agreement to be liable for a fixed sum of money
if he fails to appear as required or fails to comply with the conditions if he fails to appear as required or fails to comply with the conditions
of the bail bond; however, no money or other form of security is of the bail bond; however, no money or other form of security is
required;4 required;4
(4) Release on Nominal Bail: release is conditioned upon the deposit of (4) Release on Nominal Bail: release is conditioned upon the deposit of
a nominal amount of cash and the agreement of a designated person, a nominal amount of cash and the agreement of a designated person,
organization, or bail agency to act as surety;5 and organization, or bail agency to act as surety;5 and
(5) Release on a Monetary Condition: release conditioned upon a (5) Release on a Monetary Condition: release conditioned upon a
monetary amount set by the issuing authority.6 monetary amount set by the issuing authority.6
2 See Pa.R.CRim.P., Rule 524(C)(1). 2 See Pa.R.CRim.P., Rule 524(C)(1).
3 See Pa.R.CRim.P., Rule 524(C)(2). (T)he categories of nonmonetary conditions that the bail authority may impose are: (1) reporting 3 See Pa.R.CRim.P., Rule 524(C)(2). (T)he categories of nonmonetary conditions that the bail authority may impose are: (1) reporting
requirements; (2) restrictions on the defendants travel; and/or (3) any other appropriate conditions designed to ensure the defendants requirements; (2) restrictions on the defendants travel; and/or (3) any other appropriate conditions designed to ensure the defendants
appearance and compliance with the conditions of the bail bond. Pa.R.Crim.P., Rule 527. appearance and compliance with the conditions of the bail bond. Pa.R.Crim.P., Rule 527.
4 See Pa.R.CRim.P. Rule 524(C)(3). 4 See Pa.R.CRim.P. Rule 524(C)(3).
5 See Pa.R.CRim.P. Rule 524(C)(4). 5 See Pa.R.CRim.P. Rule 524(C)(4).
6 See Pa.R.CRim.P. Rule 524(C)(5). The amount of the monetary condition cannot be greater than is necessary to ensure the defendants 6 See Pa.R.CRim.P. Rule 524(C)(5). The amount of the monetary condition cannot be greater than is necessary to ensure the defendants
appearance and compliance with the conditions of the bail bond. Considerations for the amount of bail are specified in Rule 528. appearance and compliance with the conditions of the bail bond. Considerations for the amount of bail are specified in Rule 528.
Pretrial Pretrial
First, the court may release the defendant on recognizance, commonly referred to First, the court may release the defendant on recognizance, commonly referred to
as ROR bail. Pa.R.Crim.P. (C)(1). This release is conditioned only upon the defendants as ROR bail. Pa.R.Crim.P. (C)(1). This release is conditioned only upon the defendants
written agreement to appear when required and to comply with all conditions of the bail written agreement to appear when required and to comply with all conditions of the bail
bond as provided in Pa.R.Crim.P. 526(A). Id. bond as provided in Pa.R.Crim.P. 526(A). Id.
Second, the court may release on nonmonetary conditions, Pa.R.Crim.P. 524(C) Second, the court may release on nonmonetary conditions, Pa.R.Crim.P. 524(C)
(2). Under this authority, the court may impose the following conditions: (2). Under this authority, the court may impose the following conditions:
(1) reporting requirements; (1) reporting requirements;

(2) restrictions on the defendants travel; and/or (2) restrictions on the defendants travel; and/or
(3) any other appropriate conditions designed to ensure (3) any other appropriate conditions designed to ensure
the defendants appearance and compliance with the conditions the defendants appearance and compliance with the conditions
of the bail bond. of the bail bond.
When a defendant poses a danger to another person, especially in cases involving When a defendant poses a danger to another person, especially in cases involving
domestic violence, a no contact order is appropriate under this Rule. Id., Cmt. These domestic violence, a no contact order is appropriate under this Rule. Id., Cmt. These
conditions must be stated with specificity on the bail bond. Id. conditions must be stated with specificity on the bail bond. Id.
A third option available to the court is release on unsecured bond. Under this A third option available to the court is release on unsecured bond. Under this
option, the court releases the defendant on the condition that the defendant agrees to option, the court releases the defendant on the condition that the defendant agrees to
be liable for a fixed sum should the defendant fail to appear at a required proceeding or be liable for a fixed sum should the defendant fail to appear at a required proceeding or
comply with the conditions of bail. No money or security is required to be deposited. comply with the conditions of bail. No money or security is required to be deposited.
Pa.R.Crim.P. 524(C)(3). Pa.R.Crim.P. 524(C)(3).
Fourth, the court may release the defendant on nominal bail. Here, the defendant Fourth, the court may release the defendant on nominal bail. Here, the defendant
is required to deposit a nominal amount of cash (often $1.00) and must designate is required to deposit a nominal amount of cash (often $1.00) and must designate
another person, organization, or bail agency to act as a surety. Pa.R.Crim.P. 524(C)(4). another person, organization, or bail agency to act as a surety. Pa.R.Crim.P. 524(C)(4).
Finally, the court may release the defendant on a monetary condition, Pa.R.Crim.P. Finally, the court may release the defendant on a monetary condition, Pa.R.Crim.P.
524(C)(5), imposed pursuant to Pa.R.Crim.P. 528. The bail authority may consider the 524(C)(5), imposed pursuant to Pa.R.Crim.P. 528. The bail authority may consider the
following when determining the monetary condition of bail: (1) the release criteria from following when determining the monetary condition of bail: (1) the release criteria from
Pa.R.Crim.P. 523, and (2) the financial ability of the defendant. Pa.R.Crim.P. 528(A). The Pa.R.Crim.P. 523, and (2) the financial ability of the defendant. Pa.R.Crim.P. 528(A). The
amount of the monetary condition must be reasonable in light of the financial ability amount of the monetary condition must be reasonable in light of the financial ability
of the defendant. Pa.R.Crim.P. 528(B). A 10% deposit may act as sufficient security of the defendant. Pa.R.Crim.P. 528(B). A 10% deposit may act as sufficient security
for the entire monetary condition, and acceptable forms of security include: cash or for the entire monetary condition, and acceptable forms of security include: cash or
cash equivalents, U.S. or Commonwealth of Pennsylvania bearer bonds, realty within cash equivalents, U.S. or Commonwealth of Pennsylvania bearer bonds, realty within
the United States, and surety bonds under 42 Pa. Cons. Stat. Ann. 5741-5749. Rule the United States, and surety bonds under 42 Pa. Cons. Stat. Ann. 5741-5749. Rule
528(C)(D), 42 Pa. Cons. Stat. Ann. 528(C)(D), 42 Pa. Cons. Stat. Ann.
D. Factors for Bail Consideration D. Factors for Bail Consideration
Although the fundamental purpose of bail is to assure the defendants future Although the fundamental purpose of bail is to assure the defendants future
appearance, Commonwealth v. Mayfield, 827 A.2d 462, 466 (Pa. Super. 2003), as appearance, Commonwealth v. Mayfield, 827 A.2d 462, 466 (Pa. Super. 2003), as
stated above, the Rules of Criminal Procedure specify other factors as well. In making stated above, the Rules of Criminal Procedure specify other factors as well. In making
this determination, the court shall consider all available information relevant to this determination, the court shall consider all available information relevant to
Pretrial Pretrial
defendants appearance or nonappearance at subsequent proceedings, or compliance defendants appearance or nonappearance at subsequent proceedings, or compliance
or noncompliance with conditions of the bail bond, including information about: or noncompliance with conditions of the bail bond, including information about:
the nature of offense charged and any mitigating or aggravating factors the nature of offense charged and any mitigating or aggravating factors
that may bear upon the likelihood of conviction and possible penalty; that may bear upon the likelihood of conviction and possible penalty;
the defendants employment status and history, and financial condition; the defendants employment status and history, and financial condition;
the nature of defendants family relationship; the nature of defendants family relationship;
the length and nature of defendants residence in the community, and any the length and nature of defendants residence in the community, and any
past residences; past residences;
the defendants age, character, reputation, mental condition, and whether the defendants age, character, reputation, mental condition, and whether
addicted to alcohol or drugs; addicted to alcohol or drugs;
if the defendant has previously been released on bail, whether he appeared if the defendant has previously been released on bail, whether he appeared
as required and complied with any bail conditions; as required and complied with any bail conditions;
whether the defendant has any record of flight to avoid arrest or whether the defendant has any record of flight to avoid arrest or
prosecution, or of escape or attempted escape; prosecution, or of escape or attempted escape;
the defendants prior criminal record; the defendants prior criminal record;
whether the defendant has any history of use of false identification; and whether the defendant has any history of use of false identification; and
any other factors relevant to whether the defendant will appear as any other factors relevant to whether the defendant will appear as
required and comply with the conditions of the bail bond. required and comply with the conditions of the bail bond.
Pa.R.Crim.P. 523. Pa.R.Crim.P. 523.
Anticipated criminal activity may be considered in setting the amount and terms Anticipated criminal activity may be considered in setting the amount and terms
of bail, in conjunction with the other considerations. Commonwealth v. Truesdale, 449 of bail, in conjunction with the other considerations. Commonwealth v. Truesdale, 449
Pa. 325, 296 A.2d 829 (1972). However, the failure of the defendant to admit culpability Pa. 325, 296 A.2d 829 (1972). However, the failure of the defendant to admit culpability
or assist in the investigation may not be used as a reason to impose additional or more or assist in the investigation may not be used as a reason to impose additional or more
restrictive conditions of bail on the defendant. Pa.R.Crim.P. 523(B). restrictive conditions of bail on the defendant. Pa.R.Crim.P. 523(B).
E. Bail Conditions E. Bail Conditions
The trial court may impose non-monetary conditions, such as house arrest, The trial court may impose non-monetary conditions, such as house arrest,
electronic monitoring, and a prohibition from possession of firearms, on a defendant. electronic monitoring, and a prohibition from possession of firearms, on a defendant.
Commonwealth v. Sloan, 589 Pa. 15, 28, 907 A.2d 460, 468 (2006); Commonwealth v. Commonwealth v. Sloan, 589 Pa. 15, 28, 907 A.2d 460, 468 (2006); Commonwealth v.
McKown, 79 A.3d 678, 694-695 (Pa. Super. 2013). McKown, 79 A.3d 678, 694-695 (Pa. Super. 2013).
1. Authority to add conditions 1. Authority to add conditions
In cases in which there are no time problems under Pa.R.Crim.P. 600, In cases in which there are no time problems under Pa.R.Crim.P. 600,
nonmonetary conditions may be added in accordance with Pa.R.Crim.P. 524(C) nonmonetary conditions may be added in accordance with Pa.R.Crim.P. 524(C)
(2). Pa.R.Crim.P. 524 provides: (2). Pa.R.Crim.P. 524 provides:
Rule 524. Types of Release on Bail Rule 524. Types of Release on Bail
... ...
(C) The types of release on bail are: (C) The types of release on bail are:
... ...
Pretrial Pretrial
(2) Release on Nonmonetary Conditions: Release (2) Release on Nonmonetary Conditions: Release
conditioned upon the defendants agreement to comply with conditioned upon the defendants agreement to comply with
any nonmonetary conditions, as set forth in Rule 527, which any nonmonetary conditions, as set forth in Rule 527, which
the bail authority determines are reasonably necessary to the bail authority determines are reasonably necessary to
ensure the defendants appearance and compliance with ensure the defendants appearance and compliance with
the conditions of the bail bond. the conditions of the bail bond.
Pa.R.Crim.P. 527 provides a non-exhaustive list of possible conditions: Pa.R.Crim.P. 527 provides a non-exhaustive list of possible conditions:
Rule 527. Nonmonetary Conditions of Release on Bail Rule 527. Nonmonetary Conditions of Release on Bail
(A) When the bail authority determines that, in addition to the (A) When the bail authority determines that, in addition to the
conditions of the bail bond required in every case pursuant conditions of the bail bond required in every case pursuant
to Rule 526(A), nonmonetary conditions of release on bail to Rule 526(A), nonmonetary conditions of release on bail
are necessary, the categories of nonmonetary conditions are necessary, the categories of nonmonetary conditions
that the bail authority may impose are: that the bail authority may impose are:
(1) Reporting requirements; (1) Reporting requirements;

(2) Restrictions on the defendants travel; and/or (2) Restrictions on the defendants travel; and/or
(3) Any other appropriate conditions designed to ensure the (3) Any other appropriate conditions designed to ensure the
defendants appearance and compliance with the conditions defendants appearance and compliance with the conditions
of the bail bond. of the bail bond.
2. Authority to add conditions Rule 600 2. Authority to add conditions Rule 600
In Commonwealth v. Sloan, 589 Pa. 15, 28, 907 A.2d 460, 468 (2006), the In Commonwealth v. Sloan, 589 Pa. 15, 28, 907 A.2d 460, 468 (2006), the
Pennsylvania Supreme Court analyzed the prior version of Rule 600 and found Pennsylvania Supreme Court analyzed the prior version of Rule 600 and found
the authority to add conditions to nominal bail the authority to add conditions to nominal bail
In light of the 1998 amendments to Article I, Section 14, we In light of the 1998 amendments to Article I, Section 14, we
now hold that [Pa.R.Crim.P.) Rule 600 (E)s mandatory remedy now hold that [Pa.R.Crim.P.) Rule 600 (E)s mandatory remedy
of nominal release after 180 days of incarceration is not the of nominal release after 180 days of incarceration is not the
same as unconditional release. Release may be conditioned on same as unconditional release. Release may be conditioned on
terms that not only give adequate assurance that the accused terms that not only give adequate assurance that the accused
will appear for trial, but also assures that victims, witnesses, will appear for trial, but also assures that victims, witnesses,
and the community will be protected. Accordingly, we hold and the community will be protected. Accordingly, we hold
that Rule 600(E) permits a trial court to impose non-monetary that Rule 600(E) permits a trial court to impose non-monetary
conditions, such as house arrest and electronic monitoring, conditions, such as house arrest and electronic monitoring,
on a defendant who might otherwise be denied release on on a defendant who might otherwise be denied release on
nominal bail under Article I, Section 14. nominal bail under Article I, Section 14.
Id. at 28, 907 A.2d at 468. Id. at 28, 907 A.2d at 468.
Rule 600 now provides: Rule 600 now provides:
Pretrial Pretrial
Except in cases in which the defendant is not entitled to release Except in cases in which the defendant is not entitled to release
on bail as provided by law, when a defendant is held in pretrial on bail as provided by law, when a defendant is held in pretrial
incarceration beyond the time set forth in paragraph (B), at any incarceration beyond the time set forth in paragraph (B), at any
time before trial, the defendants attorney, or the defendant if time before trial, the defendants attorney, or the defendant if
unrepresented, may file a written motion requesting that the unrepresented, may file a written motion requesting that the
defendant be released immediately on nominal bail subject to defendant be released immediately on nominal bail subject to
any nonmonetary conditions of bail imposed by the court as any nonmonetary conditions of bail imposed by the court as
permitted by law. A copy of the motion shall be served on the permitted by law. A copy of the motion shall be served on the
attorney for the Commonwealth concurrently with filing. The attorney for the Commonwealth concurrently with filing. The
judge shall conduct a hearing on the motion. judge shall conduct a hearing on the motion.
Pa.R.Crim.P. 600(D)(2)(emphasis added). This section of Pa.R.Crim.P. 600 Pa.R.Crim.P. 600(D)(2)(emphasis added). This section of Pa.R.Crim.P. 600
provides that nominal bail includes, in appropriate cases, the imposition of provides that nominal bail includes, in appropriate cases, the imposition of
nonmonetary conditions of release. See Comment, Pa.R.Crim.P. 600. nonmonetary conditions of release. See Comment, Pa.R.Crim.P. 600.
In cases in which there are no time problems under Pa.R.Crim.P. 600, In cases in which there are no time problems under Pa.R.Crim.P. 600,
nonmonetary conditions may be added in accordance with Pa.R.Crim.P. 524(C)(2). nonmonetary conditions may be added in accordance with Pa.R.Crim.P. 524(C)(2).
3. Selected Available Conditions 3. Selected Available Conditions
The Rules of Criminal Procedure also provide for the court to impose non- The Rules of Criminal Procedure also provide for the court to impose non-
monetary conditions of bail. Courts frequently supplement monetary bail with monetary conditions of bail. Courts frequently supplement monetary bail with
non-monetary conditions, especially in cases of sexual violence. non-monetary conditions, especially in cases of sexual violence.
(T)he bail authority should consider what the specific (T)he bail authority should consider what the specific
circumstances are that relate to the likelihood that the defendant circumstances are that relate to the likelihood that the defendant
will appear and comply and should tailor the conditions of will appear and comply and should tailor the conditions of
release for the defendants specific circumstances. In addition, release for the defendants specific circumstances. In addition,
the bail authority must determine whether the conditions the bail authority must determine whether the conditions
being considered are reasonably capable of being enforced. being considered are reasonably capable of being enforced.
See Pa.R.Crim.P. 527, Cmt. See Pa.R.Crim.P. 527, Cmt.
The types of conditions that have been used by the courts,7 some of which The types of conditions that have been used by the courts,7 some of which
are included as examples in the Note following Pa.R.Crim.P. 527, include: are included as examples in the Note following Pa.R.Crim.P. 527, include:
Conditions to Ensure Safety of Alleged Victim and Others Conditions to Ensure Safety of Alleged Victim and Others
The defendant to refrain from contact with specified person(s) The defendant to refrain from contact with specified person(s)
including the victim (this is commonly called a no-contact order including the victim (this is commonly called a no-contact order
with alleged victims or witnesses). with alleged victims or witnesses).
Restricting the defendant from being in the presence of specified Restricting the defendant from being in the presence of specified
other persons, such as minor children. other persons, such as minor children.
Submission to drug and/or alcohol testing, as well as recommended Submission to drug and/or alcohol testing, as well as recommended
7 A combination of conditions is often appropriate. 7 A combination of conditions is often appropriate.
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follow-up treatment. follow-up treatment.

The defendant to refrain from excessive use of alcoholic beverages. The defendant to refrain from excessive use of alcoholic beverages.
The defendant to refrain from any use of illegal drugs. The defendant to refrain from any use of illegal drugs.
Submission to undergo a mental health evaluation and participate Submission to undergo a mental health evaluation and participate
in recommended follow-up treatment and/or counseling. in recommended follow-up treatment and/or counseling.
If compelling reasons exist, for the defendant to commit himself If compelling reasons exist, for the defendant to commit himself
to a private or public mental health facility. to a private or public mental health facility.
Defendant to undergo urinalysis on a specified schedule. Defendant to undergo urinalysis on a specified schedule.
Restrictive Conditions On Defendants Travel and Whereabouts Restrictive Conditions On Defendants Travel and Whereabouts
To Ensure Presence At Future Court Proceedings To Ensure Presence At Future Court Proceedings
Restricting the defendant from being at or near specified locations, Restricting the defendant from being at or near specified locations,
such as schools, the residence or work place of the alleged victim, such as schools, the residence or work place of the alleged victim,
etc. etc.
Restricting the defendant to his residence or a supervised halfway Restricting the defendant to his residence or a supervised halfway
house, with only specified windows for release such as work or house, with only specified windows for release such as work or
school. school.
Requiring electronic monitoring. Requiring electronic monitoring.
Requiring the defendant to be in the presence of others when he Requiring the defendant to be in the presence of others when he
leaves his residence, such as his parents or spouse. leaves his residence, such as his parents or spouse.
The defendant to comply with a specified curfew. The defendant to comply with a specified curfew.
No travel outside of the county of prosecution. No travel outside of the county of prosecution.
The defendant to surrender his passport. The defendant to surrender his passport.
Reporting Conditions On Defendant To Ensure Presence At Reporting Conditions On Defendant To Ensure Presence At
Future Court Proceedings Future Court Proceedings
The defendant to report by phone on a daily basis or at other The defendant to report by phone on a daily basis or at other
specified times. specified times.
The defendant to report in person on a daily basis or at other The defendant to report in person on a daily basis or at other
specified times. specified times.
Supervisory Conditions To Ensure Presence At Future Court Supervisory Conditions To Ensure Presence At Future Court
Proceedings Proceedings
The defendant be supervised by a designated probation The defendant be supervised by a designated probation
department or bail agency. department or bail agency.
The defendant be supervised by a designated person or private The defendant be supervised by a designated person or private
organization. organization.
Supervision of the defendant to include close contact and Supervision of the defendant to include close contact and
assistance in appearing in court. assistance in appearing in court.
That the defendant maintains employment or continues with an That the defendant maintains employment or continues with an
educational program while on bail supervision. educational program while on bail supervision.
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Requiring the defendant to report any change of address, phone Requiring the defendant to report any change of address, phone
or employment. or employment.
The defendant to hand over to law enforcement all weapons in his The defendant to hand over to law enforcement all weapons in his
possession or under his control. possession or under his control.
F. Denial of Bail F. Denial of Bail
There may be instances where a trial court deems a defendant too dangerous to There may be instances where a trial court deems a defendant too dangerous to
be released even subject to conditions. be released even subject to conditions.
In Commonwealth v. Jones, 899 A.2d 353 (Pa. Super. 2006),8 the defendant had In Commonwealth v. Jones, 899 A.2d 353 (Pa. Super. 2006),8 the defendant had
been charged with rape, involuntary deviate sexual intercourse, sexual assault, indecent been charged with rape, involuntary deviate sexual intercourse, sexual assault, indecent
assault and simple assault. The Superior Court affirmed the trial courts denial of a assault and simple assault. The Superior Court affirmed the trial courts denial of a
request for Rule 600(E) release on nominal bail because the defendant was deemed too request for Rule 600(E) release on nominal bail because the defendant was deemed too
dangerous for release pursuant to the Pennsylvania Constitution, Article I, Section 14. dangerous for release pursuant to the Pennsylvania Constitution, Article I, Section 14.
Specifically, the trial court noted that at the time of the defendants arrest: Specifically, the trial court noted that at the time of the defendants arrest:
he was a fugitive on other rape charges; he was a fugitive on other rape charges;
the case presently before the court involved an alleged rape and assault of the case presently before the court involved an alleged rape and assault of
a twenty-five year old woman who was five months pregnant; and a twenty-five year old woman who was five months pregnant; and
the defendant had an extensive prior criminal record. the defendant had an extensive prior criminal record.
Id. at 356. Id. at 356.
Defendants who should not be released on bail based upon the consideration of Defendants who should not be released on bail based upon the consideration of
Article I, Section 14 of the Pennsylvania Constitution are not eligible for nominal bail Article I, Section 14 of the Pennsylvania Constitution are not eligible for nominal bail
release under section (D)(2) of current Pa.R.Crim.P. 600. See Comment, Pa.R.Crim.P. 600. release under section (D)(2) of current Pa.R.Crim.P. 600. See Comment, Pa.R.Crim.P. 600.
If bail is denied, the bail authority must set forth, on the record or in writing, the If bail is denied, the bail authority must set forth, on the record or in writing, the
reasons for its decision. Pa.R.Crim.P. 520(A). reasons for its decision. Pa.R.Crim.P. 520(A).
G. Modification G. Modification
1. By Magisterial District Judge 1. By Magisterial District Judge
An MDJ may modify bail before the preliminary hearing upon request of An MDJ may modify bail before the preliminary hearing upon request of
either side or sua sponte after notice to the parties and an opportunity to be heard. either side or sua sponte after notice to the parties and an opportunity to be heard.
Pa.R.Crim.P. 529(A). Bail may also be modified by the MDJ at the preliminary Pa.R.Crim.P. 529(A). Bail may also be modified by the MDJ at the preliminary
hearing. hearing.
2. By Trial Court 2. By Trial Court
An existing bail order may be modified by a Judge of the Court of Common An existing bail order may be modified by a Judge of the Court of Common
Pleas at any time prior to verdict upon motion by either party with notice to the Pleas at any time prior to verdict upon motion by either party with notice to the
opposing party and a hearing on the motion, or at trial or a pretrial hearing in opposing party and a hearing on the motion, or at trial or a pretrial hearing in
8 Jones was approvingly cited in Commonwealth v. Sloan, 589 Pa. 15, 28 n.10, 907 A.2d 460, 468 n. 10 (2006). 8 Jones was approvingly cited in Commonwealth v. Sloan, 589 Pa. 15, 28 n.10, 907 A.2d 460, 468 n. 10 (2006).
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open court on the record when all the parties are present. Pa.R.Crim.P. 529(B). open court on the record when all the parties are present. Pa.R.Crim.P. 529(B).
When bail is modified, the modification must be explained to the defendant and When bail is modified, the modification must be explained to the defendant and
stated in writing or on the record by the issuing authority or Judge. Pa.R.Crim.P. stated in writing or on the record by the issuing authority or Judge. Pa.R.Crim.P.
529(E). 529(E).
Once bail has been set or modified by a Judge of the Court of Common Once bail has been set or modified by a Judge of the Court of Common
Pleas, it may not be modified thereafter except by a court of superior jurisdiction, Pleas, it may not be modified thereafter except by a court of superior jurisdiction,
or by the same judge or another judge of the Court of Common Pleas either at or by the same judge or another judge of the Court of Common Pleas either at
trial or after notice to the parties and a hearing. Pa.R.Crim.P. 529(D). trial or after notice to the parties and a hearing. Pa.R.Crim.P. 529(D).
H. Bail After Conviction H. Bail After Conviction
1. Before sentencing 1. Before sentencing
After a defendant has been convicted, his right to bail is conditioned on After a defendant has been convicted, his right to bail is conditioned on
the possible sentences flowing from the conviction(s), and whether sentencing the possible sentences flowing from the conviction(s), and whether sentencing
has occurred. When a defendant has been convicted of an offense which is has occurred. When a defendant has been convicted of an offense which is
punishable by death or life imprisonment, the defendant shall not be released on punishable by death or life imprisonment, the defendant shall not be released on
bail. Pa.R.Crim.P. 521(A)(1). bail. Pa.R.Crim.P. 521(A)(1).
In other cases, the standard used to determine eligibility for bail is based In other cases, the standard used to determine eligibility for bail is based
upon whether the aggregate of all possible sentences of imprisonment on all upon whether the aggregate of all possible sentences of imprisonment on all
outstanding verdicts against the defendant in the same judicial district exceeds outstanding verdicts against the defendant in the same judicial district exceeds
three (3) years. If the possible sentences do not exceed 3 years aggregate, the three (3) years. If the possible sentences do not exceed 3 years aggregate, the
defendant has the same right to bail as he had prior to conviction. Pa.R.Crim.P. defendant has the same right to bail as he had prior to conviction. Pa.R.Crim.P.
521(A)(2)(a). 521(A)(2)(a).
If the possible sentences aggregated exceed 3 years, then the defendant If the possible sentences aggregated exceed 3 years, then the defendant
has the same right to bail as before conviction unless the sentencing judge finds: has the same right to bail as before conviction unless the sentencing judge finds:
that no condition of bail will reasonably ensure that that no condition of bail will reasonably ensure that
the defendant will appear or comply with the bail the defendant will appear or comply with the bail
bond; or bond; or
that the defendant poses a danger to any person or that the defendant poses a danger to any person or
the community or himself. the community or himself.
Pa.R.Crim.P. 521(A)(2)(b). Pa.R.Crim.P. 521(A)(2)(b).
2. After sentencing 2. After sentencing
After a defendant has been sentenced, the standard applicable is again After a defendant has been sentenced, the standard applicable is again
predicated on the possible maximum length of sentence of imprisonment. If the predicated on the possible maximum length of sentence of imprisonment. If the
sentence imposed includes imprisonment of less than 2 years, the defendant shall sentence imposed includes imprisonment of less than 2 years, the defendant shall
be entitled to the same right of bail as he was prior to the conviction, unless the be entitled to the same right of bail as he was prior to the conviction, unless the
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Judge modifies the bail order pursuant to paragraph (D). Pa.R.Crim.P. 521(B)(1). Judge modifies the bail order pursuant to paragraph (D). Pa.R.Crim.P. 521(B)(1).
With the exception of capital and life imprisonment cases under paragraph With the exception of capital and life imprisonment cases under paragraph
(A)(1), if the sentence imposed includes possible imprisonment exceeding 2 years, (A)(1), if the sentence imposed includes possible imprisonment exceeding 2 years,
bail may be granted at the discretion of the trial judge. Pa.R.Crim.P. 521(B)(2). bail may be granted at the discretion of the trial judge. Pa.R.Crim.P. 521(B)(2).
After the defendant is sentenced and released on bail, the Judge may After the defendant is sentenced and released on bail, the Judge may
impose as a condition of bail that the defendant file a post-sentence motion or impose as a condition of bail that the defendant file a post-sentence motion or
perfect an appeal within the time required by law. Pa.R.Crim.P. 521(B)(3). perfect an appeal within the time required by law. Pa.R.Crim.P. 521(B)(3).
3. Modification after conviction or sentencing 3. Modification after conviction or sentencing
When a defendant is eligible for release on bail after conviction, the When a defendant is eligible for release on bail after conviction, the
existing bail order may be modified by a Judge of the Court of Common Pleas, existing bail order may be modified by a Judge of the Court of Common Pleas,
upon the Judges own motion or upon motion of counsel for either party with upon the Judges own motion or upon motion of counsel for either party with
notice to the opposing party, in open court on the record when all parties are notice to the opposing party, in open court on the record when all parties are
present. Pa.R.Crim.P. 521(D)(1). present. Pa.R.Crim.P. 521(D)(1).
The decision to modify the bail order should be based on the same The decision to modify the bail order should be based on the same
considerations relevant when first deciding to grant bail.9 Pa.R.Crim.P. 521(D)(2). considerations relevant when first deciding to grant bail.9 Pa.R.Crim.P. 521(D)(2).
Whenever bail is refused or revoked after conviction, the Judge must state Whenever bail is refused or revoked after conviction, the Judge must state
on the record reasons in support of the decision. Pa.R.Crim.P. 521(C). on the record reasons in support of the decision. Pa.R.Crim.P. 521(C).
I. Violation of Condition of Bail I. Violation of Condition of Bail
1. Revocation 1. Revocation
When a defendant violates a condition of the bail bond, several sanctions When a defendant violates a condition of the bail bond, several sanctions
are authorized by Pa.R.Crim.P. 536(A), including revocation of release, arrest, and are authorized by Pa.R.Crim.P. 536(A), including revocation of release, arrest, and
changes to the conditions of the bail bond. Commonwealth v. Hann, --- Pa. ---, changes to the conditions of the bail bond. Commonwealth v. Hann, --- Pa. ---,
81 A.3d 57, 66 (2013). Upon learning of a violation of a bail condition, the bail 81 A.3d 57, 66 (2013). Upon learning of a violation of a bail condition, the bail
authority may issue a warrant for the defendants arrest. Pa.R.Crim.P. 536(A)(1) authority may issue a warrant for the defendants arrest. Pa.R.Crim.P. 536(A)(1)
(b). (b).
Furthermore, the bail authority may order the defendant or his surety to Furthermore, the bail authority may order the defendant or his surety to
show cause why the defendants release should not be revoked or the conditions show cause why the defendants release should not be revoked or the conditions
of his bail modified. Pa.R.Crim.P. 536(A)(1)(c). If the bail authority revokes or of his bail modified. Pa.R.Crim.P. 536(A)(1)(c). If the bail authority revokes or
modifies the conditions of the defendants release, the bail authority must state modifies the conditions of the defendants release, the bail authority must state
in writing or on the record the reasons for so doing. Pa.R.Crim.P. 536(A)(1)(d). in writing or on the record the reasons for so doing. Pa.R.Crim.P. 536(A)(1)(d).
2. Forfeiture 2. Forfeiture
Upon a defendants violation of any bail condition, under Pennsylvania Upon a defendants violation of any bail condition, under Pennsylvania
9 The release criteria are listed in Pa.R.CRim.P. 523. Additionally, consideration should include the defendants likelihood of fleeing the 9 The release criteria are listed in Pa.R.CRim.P. 523. Additionally, consideration should include the defendants likelihood of fleeing the
jurisdiction or whether the defendant is a danger to any other person, the community, or himself or herself. Pa.R.CRim.P. 521(D)(2). jurisdiction or whether the defendant is a danger to any other person, the community, or himself or herself. Pa.R.CRim.P. 521(D)(2).
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law the bail may be subject to forfeiture. Pa.R.Crim.P. Rule 536. See also, law the bail may be subject to forfeiture. Pa.R.Crim.P. Rule 536. See also,
Commonwealth v. Gaines, 74 A.3d 1047, 1050-1051 (Pa. Super. 2013). After Commonwealth v. Gaines, 74 A.3d 1047, 1050-1051 (Pa. Super. 2013). After
forfeiture, the money deposited to secure the defendants appearance or forfeiture, the money deposited to secure the defendants appearance or
compliance with the conditions of the bail bond technically becomes the property compliance with the conditions of the bail bond technically becomes the property
of the county. Id. of the county. Id.
However, the bail bond remains subject to exoneration, set-aside, or However, the bail bond remains subject to exoneration, set-aside, or
remittance by the court. See Pa.R.Crim.P. 536(C). A forfeiture, once declared remittance by the court. See Pa.R.Crim.P. 536(C). A forfeiture, once declared
by the court, may be set aside or remitted as justice requires. See Pa.R.Crim.P. by the court, may be set aside or remitted as justice requires. See Pa.R.Crim.P.
536(A)(2)(d). Equitable principles apply when a court is faced with the decision 536(A)(2)(d). Equitable principles apply when a court is faced with the decision
whether to modify or remit a forfeiture. Commonwealth v. Hernandez, 886 A.2d whether to modify or remit a forfeiture. Commonwealth v. Hernandez, 886 A.2d
231, 238 (Pa. Super. 2005), appeal denied, 587 Pa. 720, 899 A.2d 1122 (2006); 231, 238 (Pa. Super. 2005), appeal denied, 587 Pa. 720, 899 A.2d 1122 (2006);
Commonwealth v. Nolan, 432 A.2d 616 (Pa. Super. 1981). Commonwealth v. Nolan, 432 A.2d 616 (Pa. Super. 1981).
The trial court should consider the following factors in determining The trial court should consider the following factors in determining
whether remittance is appropriate: whether remittance is appropriate:
(1) the willfulness of the defendants breach; (1) the willfulness of the defendants breach;
(2) the cost, inconvenience and prejudice suffered by the (2) the cost, inconvenience and prejudice suffered by the
prosecution as a result of the breach; prosecution as a result of the breach;
(3) and any explanation or mitigating factors present in the case. (3) and any explanation or mitigating factors present in the case.
Commonwealth v. Gaines, 74 A.2d at 1051; Commonwealth v. Atkins, 644 A.2d Commonwealth v. Gaines, 74 A.2d at 1051; Commonwealth v. Atkins, 644 A.2d
751, 753 (Pa. Super. 1994). 751, 753 (Pa. Super. 1994).
The Pennsylvania Supreme Court has recently explained the procedure in The Pennsylvania Supreme Court has recently explained the procedure in
a case in which a surety seeks exoneration from a forfeiture order. First, a hearing a case in which a surety seeks exoneration from a forfeiture order. First, a hearing
should be held. At that hearing, the Commonwealth has the burden of proving should be held. At that hearing, the Commonwealth has the burden of proving
that a defendant breached a condition of the bail bond and a surety had agreed that a defendant breached a condition of the bail bond and a surety had agreed
to be bound thereby. Then, the burden shifts to the defendant or his surety to to be bound thereby. Then, the burden shifts to the defendant or his surety to
justify full or partial remission of bail forfeiture. In the context of bondsmen justify full or partial remission of bail forfeiture. In the context of bondsmen
petitioning for remittance, the burden is on the bondsmen, by a preponderance petitioning for remittance, the burden is on the bondsmen, by a preponderance
of the evidence, to prove that his or her efforts contributed to the apprehension of the evidence, to prove that his or her efforts contributed to the apprehension
and return of the fugitive defendant or that those efforts at least had a substantial and return of the fugitive defendant or that those efforts at least had a substantial
impact on his or her apprehension and return, i.e., that justice does not require impact on his or her apprehension and return, i.e., that justice does not require
the forfeiture. See Commonwealth v. Hann, --- Pa. ---, 81 A.3d 57, 71-72 (2013). the forfeiture. See Commonwealth v. Hann, --- Pa. ---, 81 A.3d 57, 71-72 (2013).
The standard and scope of review employed by the appellate courts when The standard and scope of review employed by the appellate courts when
reviewing a trial courts grant or denial of bail forfeiture remission is well-settled. reviewing a trial courts grant or denial of bail forfeiture remission is well-settled.
The decision to allow or deny a remission of bail forfeiture The decision to allow or deny a remission of bail forfeiture
lies with the sound discretion of the trial court. Trial courts lies with the sound discretion of the trial court. Trial courts
unquestionably have the authority to order the forfeiture of unquestionably have the authority to order the forfeiture of
bail upon the breach or violation of any condition of the bail bail upon the breach or violation of any condition of the bail
bond. In bond forfeiture cases, an abuse of that discretion or bond. In bond forfeiture cases, an abuse of that discretion or
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authority will only be found if the aggrieved party demonstrates authority will only be found if the aggrieved party demonstrates
that the trial court misapplied the law, exercised its judgment that the trial court misapplied the law, exercised its judgment
in a manifestly unreasonable manner, or acted on the basis of in a manifestly unreasonable manner, or acted on the basis of
bias, partiality, or ill-will. To the extent the aggrieved party bias, partiality, or ill-will. To the extent the aggrieved party
alleges an error of law, [the appellate court] will correct that alleges an error of law, [the appellate court] will correct that
error, and our scope of review in doing so is plenary. error, and our scope of review in doing so is plenary.
Commonwealth v. Hann, --- Pa. ---, 81 A.3d 57, 65 (2013) (quotations omitted). Commonwealth v. Hann, --- Pa. ---, 81 A.3d 57, 65 (2013) (quotations omitted).
J. Appellate Review J. Appellate Review
An order relating to bail is subject to review pursuant to Chapter 15 of the An order relating to bail is subject to review pursuant to Chapter 15 of the
Pennsylvania Rules of Appellate Procedure relating to judicial review of governmental Pennsylvania Rules of Appellate Procedure relating to judicial review of governmental
determinations. See Commonwealth v. Jones, 899 A.2d 353, 354 n.1 (Pa.Super. 2006). determinations. See Commonwealth v. Jones, 899 A.2d 353, 354 n.1 (Pa.Super. 2006).
Furthermore, Pa.R.A.P. 1762 provides: Furthermore, Pa.R.A.P. 1762 provides:
Rule 1762. Release in Criminal Matters Rule 1762. Release in Criminal Matters
(a) Applications relating to bail when an appeal is pending shall (a) Applications relating to bail when an appeal is pending shall
ordinarily first be presented to the lower court, and shall be ordinarily first be presented to the lower court, and shall be
governed by the Pennsylvania Rules of Criminal Procedure. governed by the Pennsylvania Rules of Criminal Procedure.
If the lower court denies relief, a party may seek relief in the If the lower court denies relief, a party may seek relief in the
appellate court by filing an application, pursuant to Rule 123, appellate court by filing an application, pursuant to Rule 123,
ancillary to the pending appeal. ancillary to the pending appeal.
(b) Applications relating to bail when no appeal is pending: (b) Applications relating to bail when no appeal is pending:
(1) Applications relating to bail when no appeal is (1) Applications relating to bail when no appeal is
pending shall first be presented to the lower pending shall first be presented to the lower
court, and shall be governed by the Pennsylvania court, and shall be governed by the Pennsylvania
Rules of Criminal Procedure. Rules of Criminal Procedure.
(2) An order relating to bail shall be subject to (2) An order relating to bail shall be subject to
review pursuant to Chapter 15 (judicial review review pursuant to Chapter 15 (judicial review
of governmental determinations). Any answer of governmental determinations). Any answer
shall be in accordance with Rule 1516 (other shall be in accordance with Rule 1516 (other
pleadings allowed), and no other pleading pleadings allowed), and no other pleading
is authorized. Rule 1517 (applicable rules of is authorized. Rule 1517 (applicable rules of
pleading) and Rule 1531 (intervention) through pleading) and Rule 1531 (intervention) through
1551 (scope of review) shall not be applicable to 1551 (scope of review) shall not be applicable to
a petition for review filed under this paragraph. a petition for review filed under this paragraph.
(c) Content. An application for relief under subdivision (a) or a (c) Content. An application for relief under subdivision (a) or a
petition for review under subdivision (b) shall set forth specifically petition for review under subdivision (b) shall set forth specifically
and clearly the matters complained of and a description of any and clearly the matters complained of and a description of any
determinations made by the lower court. Any order and opinions determinations made by the lower court. Any order and opinions
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relating to the bail determination shall be attached as appendices. relating to the bail determination shall be attached as appendices.
(d) Service. A copy of the application for relief or the petition for (d) Service. A copy of the application for relief or the petition for
review and any answer thereto shall be served on the judge of review and any answer thereto shall be served on the judge of
the lower court. All parties in the lower court shall be served in the lower court. All parties in the lower court shall be served in
accordance with Rule 121(b) (service of all papers required). accordance with Rule 121(b) (service of all papers required).
The Attorney General of Pennsylvania need not be served in The Attorney General of Pennsylvania need not be served in
accordance with Rule 1514(c) (service), unless the Attorney accordance with Rule 1514(c) (service), unless the Attorney
General is a party in the lower court. General is a party in the lower court.
... ...
(g) Opinion of lower court. Upon receipt of a copy of an (g) Opinion of lower court. Upon receipt of a copy of an
application for relief under subdivision (a) or a petition for review application for relief under subdivision (a) or a petition for review
under subdivision (b) that does not include an explanation for the under subdivision (b) that does not include an explanation for the
bail determination, the judge who made the bail determination bail determination, the judge who made the bail determination
below shall forthwith file of record a brief statement of the reasons below shall forthwith file of record a brief statement of the reasons
for the determination or where in the record such reasons may for the determination or where in the record such reasons may
be found. be found.
Pa.R.A.P. 1762. See also, Commonwealth v. Heiser, 478 A.2d 1355, 1356 n.1 (Pa.Super. Pa.R.A.P. 1762. See also, Commonwealth v. Heiser, 478 A.2d 1355, 1356 n.1 (Pa.Super.
1984). If an appeal is taken improvidently from an order of a government unit, the papers 1984). If an appeal is taken improvidently from an order of a government unit, the papers
related to that appeal shall be regarded and acted upon as a petition for review. Pa.R.A.P. related to that appeal shall be regarded and acted upon as a petition for review. Pa.R.A.P.
1503. Any court of the unified judicial system of the Commonwealth is considered a 1503. Any court of the unified judicial system of the Commonwealth is considered a
government unit. Pa.R.A.P. 102. See Commonwealth v. Jones, 899 A.2d 353, 354 n.1 government unit. Pa.R.A.P. 102. See Commonwealth v. Jones, 899 A.2d 353, 354 n.1
(Pa.Super. 2006). (Pa.Super. 2006).
6.3 NO CONTACT ORDERS 6.3 NO CONTACT ORDERS
A. The Sexual Violence Victim Protection Act A. The Sexual Violence Victim Protection Act
On March 21, 2014, the Governor of Pennsylvania signed into law Act No. 25, On March 21, 2014, the Governor of Pennsylvania signed into law Act No. 25,
which is the Sexual Violence Victim Protection Act. The Act is codified at 42 Pa.Cons. which is the Sexual Violence Victim Protection Act. The Act is codified at 42 Pa.Cons.
Stat.Ann. 62A01 62A20. The Act is designed to protect victims of sexual violence Stat.Ann. 62A01 62A20. The Act is designed to protect victims of sexual violence
and intimidation by providing a civil remedy which prohibits the offender from contact and intimidation by providing a civil remedy which prohibits the offender from contact
with the victim, regardless whether criminal charges are filed. Furthermore, the Act with the victim, regardless whether criminal charges are filed. Furthermore, the Act
does not restrict the classification of the Defendant to a family or household member. does not restrict the classification of the Defendant to a family or household member.
A victim is identified as a person who is the victim of sexual violence or intimidation. A victim is identified as a person who is the victim of sexual violence or intimidation.
42 Pa.Cons.Stat.Ann. 62A03. 42 Pa.Cons.Stat.Ann. 62A03.
The laws sponsor, Senator Stewart Greenleaf, commented in his memoranda in The laws sponsor, Senator Stewart Greenleaf, commented in his memoranda in
support of the law that the bill was drafted with the support of the Pennsylvania Coalition support of the law that the bill was drafted with the support of the Pennsylvania Coalition
Against Rape. Sen. Greenleaf describes the law as follows: Against Rape. Sen. Greenleaf describes the law as follows:
Sexual violence humiliates, degrades and terrorizes its victims. Sexual violence humiliates, degrades and terrorizes its victims.
They need safety and protection just as domestic violence They need safety and protection just as domestic violence
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victims do whether or not they seek criminal prosecution. victims do whether or not they seek criminal prosecution.
This bill authorizes a sexual assault victim to petition the court This bill authorizes a sexual assault victim to petition the court
requesting protection from the defendant . . . . requesting protection from the defendant . . . .
The bill authorizes the court to issue an order that requires the The bill authorizes the court to issue an order that requires the
assailant to keep away from a sexual assault victim. The bills assailant to keep away from a sexual assault victim. The bills
findings and purpose section states Victims of sexual violence findings and purpose section states Victims of sexual violence
desire safety and protection from future interactions with their desire safety and protection from future interactions with their
offender, regardless of whether they seek criminal prosecution. offender, regardless of whether they seek criminal prosecution.
This legislation provides the victim with a civil remedy requiring This legislation provides the victim with a civil remedy requiring
the offender to stay away from the victim, as well as other the offender to stay away from the victim, as well as other
appropriate relief. appropriate relief.
This bill was drafted with the support of the Pennsylvania Coalition This bill was drafted with the support of the Pennsylvania Coalition
Against Rape (PCAR). Victims of sexual assault are placed in Against Rape (PCAR). Victims of sexual assault are placed in
difficult, fearful, and potentially dangerous circumstances if their difficult, fearful, and potentially dangerous circumstances if their
assailant remains in or returns to the community. These victims assailant remains in or returns to the community. These victims
should be offered the same measure of protection already in should be offered the same measure of protection already in
existence for victims of domestic violence. According to PCAR, existence for victims of domestic violence. According to PCAR,
the proposed legislation reflects a growing national trend to the proposed legislation reflects a growing national trend to
protect victims of sexual violence and if passed, will provide protect victims of sexual violence and if passed, will provide
victims with a civil remedy that requires the offender to stay away. victims with a civil remedy that requires the offender to stay away.
In addition to the District of Columbia, 26 states have passed laws In addition to the District of Columbia, 26 states have passed laws
providing protection orders for sexual assault victims. They are: providing protection orders for sexual assault victims. They are:
Alaska, California, Colorado, Florida, Illinois, Indiana, Louisiana, Alaska, California, Colorado, Florida, Illinois, Indiana, Louisiana,
Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana,
Nevada, New Mexico, North Carolina, Oklahoma, Rhode Island, Nevada, New Mexico, North Carolina, Oklahoma, Rhode Island,
South Dakota, Tennessee, Texas, Vermont, Virginia, Washington, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington,
West Virginia and Wisconsin. West Virginia and Wisconsin.
This bill is modeled after the Protection From Abuse Act (23 This bill is modeled after the Protection From Abuse Act (23
Pa.C.S. Ch. 61) but has been drafted as a free standing act to avoid Pa.C.S. Ch. 61) but has been drafted as a free standing act to avoid
confusion with protection from abuse orders in domestic violence confusion with protection from abuse orders in domestic violence
cases. Today, in Pennsylvania, orders of protection are available cases. Today, in Pennsylvania, orders of protection are available
to sexual assault victims only if a criminal case has been initiated. to sexual assault victims only if a criminal case has been initiated.
But, in fact, only 28% of victims ever report their victimization But, in fact, only 28% of victims ever report their victimization
to law enforcement. Even when victims do choose to report, to law enforcement. Even when victims do choose to report,
many cases are not prosecuted because of the burden of proof many cases are not prosecuted because of the burden of proof
or problems with evidence. Traumatized and fearful, victims of or problems with evidence. Traumatized and fearful, victims of
sexual assault need orders of protection to help keep them safe sexual assault need orders of protection to help keep them safe
from perpetrators. from perpetrators.
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Pennsylvania State Senate Co-Sponsorship Memoranda, 2-4-13. Pennsylvania State Senate Co-Sponsorship Memoranda, 2-4-13.
1. Steps 1. Steps
Commencement Procedures Commencement Procedures
The Act provides that a victim may petition the court for a protection order The Act provides that a victim may petition the court for a protection order
by the filing of a petition by an adult, emancipated minor, or, in the event the by the filing of a petition by an adult, emancipated minor, or, in the event the
plaintiff is not the victim, any parent, adult household member or guardian ad plaintiff is not the victim, any parent, adult household member or guardian ad
litem on behalf of a minor. 42 Pa.Cons.Stat.Ann. 62A05. litem on behalf of a minor. 42 Pa.Cons.Stat.Ann. 62A05.
Hearing Hearing
At the hearing, the petitioner must prove, by a preponderance of the evidence, At the hearing, the petitioner must prove, by a preponderance of the evidence,
that the plaintiff or other individual is at a continued risk of harm from the that the plaintiff or other individual is at a continued risk of harm from the
respondent. 42 Pa.Cons.Stat.Ann. 62A06(a). If the petition seeks a temporary respondent. 42 Pa.Cons.Stat.Ann. 62A06(a). If the petition seeks a temporary
order, then the court must conduct an ex parte hearing. 42 Pa.Cons.Stat.Ann. order, then the court must conduct an ex parte hearing. 42 Pa.Cons.Stat.Ann.
62A06(b). 62A06(b).
Relief Relief
The court may grant relief which prohibits the defendant from having any The court may grant relief which prohibits the defendant from having any
contact with the victim, for a fixed time period not to exceed 36 months. 42 contact with the victim, for a fixed time period not to exceed 36 months. 42
Pa.Cons.Stat.Ann. 62A07. A protection order may include (1) prohibiting the Pa.Cons.Stat.Ann. 62A07. A protection order may include (1) prohibiting the
defendant from having any contact with the plaintiff; (2) directing the defendant defendant from having any contact with the plaintiff; (2) directing the defendant
to refrain from harassing or stalking the plaintiff or other designated persons; to refrain from harassing or stalking the plaintiff or other designated persons;
and (3) granting any other appropriate relief. and (3) granting any other appropriate relief.
A copy of the protection order must be issued to the plaintiff, the defendant, A copy of the protection order must be issued to the plaintiff, the defendant,
the district attorneys office, and the law enforcement agency with appropriate the district attorneys office, and the law enforcement agency with appropriate
jurisdiction to enforce the order. Each law enforcement agency and the sheriff jurisdiction to enforce the order. Each law enforcement agency and the sheriff
of each county must ensure that all of their officers and employees are familiar of each county must ensure that all of their officers and employees are familiar
with the provisions of this act. with the provisions of this act.
Enforcement Enforcement
Indirect criminal contempt is available for violations of the protection order. 42 Indirect criminal contempt is available for violations of the protection order. 42
Pa.Cons.Stat.Ann. 62A13. Pa.Cons.Stat.Ann. 62A13.
B. Pennsylvanias Address Confidentiality Program B. Pennsylvanias Address Confidentiality Program
Pennsylvanias Address Confidentiality Program (ACP) supports the strong public Pennsylvanias Address Confidentiality Program (ACP) supports the strong public
policy of protecting the confidentiality of victims. See Domestic and Sexual Violence policy of protecting the confidentiality of victims. See Domestic and Sexual Violence
Victim Address Confidentiality Act, 23 Pa.Cons.Stat.Ann. 6701 et seq. This program, Victim Address Confidentiality Act, 23 Pa.Cons.Stat.Ann. 6701 et seq. This program,
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designed to assist victims to stay safe, provides a means for victims to keep their home designed to assist victims to stay safe, provides a means for victims to keep their home
address confidential. The program is available to victims of sexual assault, domestic address confidential. The program is available to victims of sexual assault, domestic
violence and stalking. It provides a substitute address for first-class mail, registered and violence and stalking. It provides a substitute address for first-class mail, registered and
certified mail. Local and state government agencies must use the substitute address. 23 certified mail. Local and state government agencies must use the substitute address. 23
Pa.Cons.Stat.Ann. 6707. Pa.Cons.Stat.Ann. 6707.
The Domestic and Sexual Violence Victim Address Confidentiality Act provides The Domestic and Sexual Violence Victim Address Confidentiality Act provides
that the Office of Victim Advocate must establish the ACP. Persons who are eligible are that the Office of Victim Advocate must establish the ACP. Persons who are eligible are
listed in 6704: listed in 6704:
The following persons shall be eligible to apply to become The following persons shall be eligible to apply to become
program participants: program participants:
(1) A victim of domestic violence who files an affidavit with the (1) A victim of domestic violence who files an affidavit with the
Office of Victim Advocate stating the affiants eligibility for a Office of Victim Advocate stating the affiants eligibility for a
protection from abuse order and further stating that the affiant protection from abuse order and further stating that the affiant
fears future violent acts by the perpetrator of the abuse. fears future violent acts by the perpetrator of the abuse.
(2) A victim of sexual assault who files an affidavit with the (2) A victim of sexual assault who files an affidavit with the
Office of Victim Advocate describing the perpetrators violent Office of Victim Advocate describing the perpetrators violent
actions or threatened violent actions toward the affiant and actions or threatened violent actions toward the affiant and
further stating that the affiant fears future violent acts by the further stating that the affiant fears future violent acts by the
perpetrator of the sexual violence. perpetrator of the sexual violence.
(3) A victim of stalking who files an affidavit with the Office of (3) A victim of stalking who files an affidavit with the Office of
Victim Advocate describing the perpetrators course of conduct Victim Advocate describing the perpetrators course of conduct
or repeated actions toward the affiant meeting the criteria or repeated actions toward the affiant meeting the criteria
enumerated in 18 Pa.C.S. 2709.1 (relating to stalking) and enumerated in 18 Pa.C.S. 2709.1 (relating to stalking) and
further stating that the affiant fears future violent acts by the further stating that the affiant fears future violent acts by the
perpetrator of the stalking. perpetrator of the stalking.
(4) A person who is a member of the same household as a (4) A person who is a member of the same household as a
program participant. program participant.
(5) A program participant who notifies the Office of Victim (5) A program participant who notifies the Office of Victim
Advocate of the participants intent to continue in the program Advocate of the participants intent to continue in the program
prior to the expiration of certification. prior to the expiration of certification.
The Office of Victim Advocate certifies eligible applicants. The certification is The Office of Victim Advocate certifies eligible applicants. The certification is
valid for three years. 23 Pa.Cons.Stat.Ann. 6705. valid for three years. 23 Pa.Cons.Stat.Ann. 6705.
State and local governmental agencies must use the substitute address as issued State and local governmental agencies must use the substitute address as issued
by the Office of Victim Advocate. There are exceptions which are listed in 23 Pa.Cons. by the Office of Victim Advocate. There are exceptions which are listed in 23 Pa.Cons.
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Stat.Ann. 6707. All records relating to applicants and program participants, including Stat.Ann. 6707. All records relating to applicants and program participants, including
program applications, participants actual addresses, and waiver proceedings, must be program applications, participants actual addresses, and waiver proceedings, must be
kept confidential and are not to be subject to the provisions of the Right-to-Know Law, kept confidential and are not to be subject to the provisions of the Right-to-Know Law,
except that records may be released as specifically set forth in the Domestic and Sexual except that records may be released as specifically set forth in the Domestic and Sexual
Violence Victim Address Confidentiality Act and to a district attorney to the extent Violence Victim Address Confidentiality Act and to a district attorney to the extent
necessary for the prosecution of conduct as specified in 23 Pa.Cons.Stat.Ann. 6711 necessary for the prosecution of conduct as specified in 23 Pa.Cons.Stat.Ann. 6711
regarding false information, access by fraud or misrepresentation, or unauthorized use. regarding false information, access by fraud or misrepresentation, or unauthorized use.
See 23 Pa.Cons.Stat.Ann. 6703(d). See 23 Pa.Cons.Stat.Ann. 6703(d).
C. The Protection from Abuse Act C. The Protection from Abuse Act
The purpose of the Protection from Abuse Act, 23 Pa.Cons.Stat.Ann. 6101 et The purpose of the Protection from Abuse Act, 23 Pa.Cons.Stat.Ann. 6101 et
seq., is to protect the victims of domestic abuse, by preventing further abuse, through the seq., is to protect the victims of domestic abuse, by preventing further abuse, through the
use of quick and flexible procedures. Commonwealth v. Snell, 737 A.2d 1232, 1235 (Pa. use of quick and flexible procedures. Commonwealth v. Snell, 737 A.2d 1232, 1235 (Pa.
Super. 1999); See also Snyder v. Snyder, 629 A.2d 977, 981 (Pa. Super. 1993). Super. 1999); See also Snyder v. Snyder, 629 A.2d 977, 981 (Pa. Super. 1993).
The goal of the Protection from Abuse Act is protection and The goal of the Protection from Abuse Act is protection and
prevention of further abuse by removing the perpetrator of the prevention of further abuse by removing the perpetrator of the
abuse from the household and/or from the victim for a period of abuse from the household and/or from the victim for a period of
time. time.
McCance v. McCance, 908 A.2d 905, 908 (Pa.Super. 2006), quoting Viruet v. Cancel, 727 McCance v. McCance, 908 A.2d 905, 908 (Pa.Super. 2006), quoting Viruet v. Cancel, 727
A.2d 591, 595 (Pa.Super. 1999). A.2d 591, 595 (Pa.Super. 1999).
The Acts protective authority extends to, inter alia, family or household The Acts protective authority extends to, inter alia, family or household
members. The Act defines family or household members as: members. The Act defines family or household members as:
Family or household members. Spouses or persons who Family or household members. Spouses or persons who
have been spouses, persons living as spouses or who lived have been spouses, persons living as spouses or who lived
as spouses, parents and children, other persons related by as spouses, parents and children, other persons related by
consanguinity or affinity, current or former sexual or intimate consanguinity or affinity, current or former sexual or intimate
partners or persons who share biological parenthood.10 partners or persons who share biological parenthood.10
The primary mechanism used by the Act is an order prohibiting contact between The primary mechanism used by the Act is an order prohibiting contact between
the victim and an alleged abuser. 23 Pa.Cons.Stat.Ann. 6108(a)(6). No contact orders the victim and an alleged abuser. 23 Pa.Cons.Stat.Ann. 6108(a)(6). No contact orders
contained as conditions in bail bonds should be viewed as having a similar purpose of contained as conditions in bail bonds should be viewed as having a similar purpose of
prohibiting contact between the alleged abuser and the victim. prohibiting contact between the alleged abuser and the victim.
When a defendant allegedly violates a PFA order, the Act allows police or a When a defendant allegedly violates a PFA order, the Act allows police or a
plaintiff to file a charge of indirect criminal contempt against the defendant. 23 Pa.Cons. plaintiff to file a charge of indirect criminal contempt against the defendant. 23 Pa.Cons.
Stat.Ann. 6114(a). The primary goals of the contempt proceeding are to punish the Stat.Ann. 6114(a). The primary goals of the contempt proceeding are to punish the
contemnor and prevent any further abuse. Commonwealth v. Snell, 737 A.2d 1232, contemnor and prevent any further abuse. Commonwealth v. Snell, 737 A.2d 1232,
1235 (Pa. Super. 1999). 1235 (Pa. Super. 1999).
10 23 PaCons.stat.ann. 6102. 10 23 PaCons.stat.ann. 6102.
Pretrial Pretrial
6.4 HUMAN IMMUNODEFICIENCY VIRUS (HIV) TESTING 6.4 HUMAN IMMUNODEFICIENCY VIRUS (HIV) TESTING
Pennsylvania adopted the HIV-Related Testing for Sex Offenders Act, 35 Pa.Stat. Pennsylvania adopted the HIV-Related Testing for Sex Offenders Act, 35 Pa.Stat.
7620.101-.1103, in 2012. This law provides for HIV testing of accused sex assailants 7620.101-.1103, in 2012. This law provides for HIV testing of accused sex assailants
to assist in the care and treatment of victims of sexual assaults. The Act describes the to assist in the care and treatment of victims of sexual assaults. The Act describes the
testing as follows: testing as follows:
HIV-related testing. A laboratory test or series of tests for a HIV-related testing. A laboratory test or series of tests for a
virus, antibody, antigen or etiologic agent which is thought to virus, antibody, antigen or etiologic agent which is thought to
cause or to indicate the presence of human immunodeficiency cause or to indicate the presence of human immunodeficiency
virus or acquired immune deficiency syndrome. virus or acquired immune deficiency syndrome.
35 Pa.Stat. 7620.103. The results of the HIV-related testing may not be used to establish 35 Pa.Stat. 7620.103. The results of the HIV-related testing may not be used to establish
the guilt of the defendant. 35 Pa.Stat. 7620.304. the guilt of the defendant. 35 Pa.Stat. 7620.304.
Criteria for Test Criteria for Test
The HIV-related test is to be ordered by the trial court upon a finding of probable The HIV-related test is to be ordered by the trial court upon a finding of probable
cause to believe there was a probable transmission of bodily fluids between a cause to believe there was a probable transmission of bodily fluids between a
defendant and victim. 35 Pa.Stat. 7620.301. defendant and victim. 35 Pa.Stat. 7620.301.
Procedure Procedure
Upon the request of the victim, and with notice to the defendant, the attorney Upon the request of the victim, and with notice to the defendant, the attorney
for the Commonwealth must make application for the test if there is a violation for the Commonwealth must make application for the test if there is a violation
of any of the enumerated crimes. 35 Pa.Stat. 7620.302. There is an alternative of any of the enumerated crimes. 35 Pa.Stat. 7620.302. There is an alternative
procedure specified in 35 Pa.Stat. 7620.303 in the case of a juvenile offender procedure specified in 35 Pa.Stat. 7620.303 in the case of a juvenile offender
transferred to adult criminal court pursuant to Pa.R.J.C.P. 394. transferred to adult criminal court pursuant to Pa.R.J.C.P. 394.
Offenses Offenses
Rape: 18 Pa.Cons.Stat.Ann. 3121 Rape: 18 Pa.Cons.Stat.Ann. 3121

Statutory Sexual Assault: 18 Pa.Cons.Stat.Ann. 3122.1 Statutory Sexual Assault: 18 Pa.Cons.Stat.Ann. 3122.1
Involuntary Deviate Sexual Intercourse: 18 Pa.Cons.Stat.Ann. 3123 Involuntary Deviate Sexual Intercourse: 18 Pa.Cons.Stat.Ann. 3123
Sexual Assault: 18 Pa.Cons.Stat.Ann. 3124.1 Sexual Assault: 18 Pa.Cons.Stat.Ann. 3124.1
Institutional Sexual Assault: 18 Pa.Cons.Stat.Ann. 3124.2 Institutional Sexual Assault: 18 Pa.Cons.Stat.Ann. 3124.2
Aggravated Indecent Assault: 18 Pa.Cons.Stat.Ann. 3125 Aggravated Indecent Assault: 18 Pa.Cons.Stat.Ann. 3125
Indecent Assault: 18 Pa.Cons.Stat.Ann. 3126 Indecent Assault: 18 Pa.Cons.Stat.Ann. 3126
Endangering the Welfare of Children, 18 Pa.Cons.Stat.Ann. 4304, if there Endangering the Welfare of Children, 18 Pa.Cons.Stat.Ann. 4304, if there
has been sexual contact with the victim has been sexual contact with the victim
Corruption of Minors, 18 Pa.Cons.Stat.Ann. 6301, if there has been Corruption of Minors, 18 Pa.Cons.Stat.Ann. 6301, if there has been
sexual contact with the victim sexual contact with the victim
Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312, if there has been Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312, if there has been
sexual contact with the victim sexual contact with the victim
Pretrial Pretrial
Sexual Exploitation of Children, 18 Pa.Cons.Stat.Ann. 6320, if there has Sexual Exploitation of Children, 18 Pa.Cons.Stat.Ann. 6320, if there has
been sexual contact with the victim been sexual contact with the victim
Disclosure Disclosure
The results of the HIV-related testing are only to be disclosed to: The results of the HIV-related testing are only to be disclosed to:
the victim; the victim;

the defendant; the defendant;
the attorney for the Commonwealth; the attorney for the Commonwealth;
the attorney for the defendant; the attorney for the defendant;
health care providers treating the victim or the defendant; health care providers treating the victim or the defendant;
the trial court; the trial court;
any other individual designated by the court. any other individual designated by the court.
6.5 VENEREAL DISEASE TESTING 6.5 VENEREAL DISEASE TESTING
Among the purposes of the Disease Prevention and Control Law, 35 Pa.Stat. Among the purposes of the Disease Prevention and Control Law, 35 Pa.Stat.
521.8, is to assign primary responsibility for the prevention and control of diseases to 521.8, is to assign primary responsibility for the prevention and control of diseases to
local health departments, and to institute a system of mandatory reporting, examination, local health departments, and to institute a system of mandatory reporting, examination,
diagnosis, and treatment of communicable diseases. Commonwealth v. Moore, 526 Pa. diagnosis, and treatment of communicable diseases. Commonwealth v. Moore, 526 Pa.
152, 159, 584 A.2d 936, 940 (1991). The Law provides: 152, 159, 584 A.2d 936, 940 (1991). The Law provides:
Disease Prevention and Control Law of 1955 Disease Prevention and Control Law of 1955
521.8. Venereal disease 521.8. Venereal disease
(a) Any person taken into custody and charged with any crime (a) Any person taken into custody and charged with any crime
involving lewd conduct or a sex offense, or any person to whom involving lewd conduct or a sex offense, or any person to whom
the jurisdiction of a juvenile court attaches, may be examined the jurisdiction of a juvenile court attaches, may be examined
for a venereal disease by a qualified physician appointed by for a venereal disease by a qualified physician appointed by
the department or by the local board or department of health or the department or by the local board or department of health or
appointed by the court having jurisdiction over the person so appointed by the court having jurisdiction over the person so
charged. charged.
(b) Any person convicted of a crime or pending trial, who is (b) Any person convicted of a crime or pending trial, who is
confined in or committed to any State or local penal institution, confined in or committed to any State or local penal institution,
reformatory or any other house of correction or detention, may reformatory or any other house of correction or detention, may
be examined for venereal disease by a qualified physician be examined for venereal disease by a qualified physician
appointed by the department or by the local board or department appointed by the department or by the local board or department
of health or by the attending physician of the institution, if any. of health or by the attending physician of the institution, if any.
(c) Any such persons noted in paragraph (a) or (b) of this (c) Any such persons noted in paragraph (a) or (b) of this
section found, upon such examination, to be infected with section found, upon such examination, to be infected with
any venereal disease shall be given appropriate treatment by any venereal disease shall be given appropriate treatment by
duly constituted health authorities or their deputies or by the duly constituted health authorities or their deputies or by the
Pretrial Pretrial
attending physician of the institution, if any. attending physician of the institution, if any.
35 Pa.Stat. 521.8. 35 Pa.Stat. 521.8.
6.6 DISCOVERY 6.6 DISCOVERY
Issues regarding pretrial discovery and inspection can be split into four related Issues regarding pretrial discovery and inspection can be split into four related
groups: groups:
Mandatory disclosures by the Commonwealth; Mandatory disclosures by the Commonwealth;

Discretionary disclosures by the Commonwealth; Discretionary disclosures by the Commonwealth;
Mandatory disclosures by the Defendant; and Mandatory disclosures by the Defendant; and
Discretionary disclosures by the Defendant. Discretionary disclosures by the Defendant.
Both parties are under a continuing duty to notify the opposing party of any Both parties are under a continuing duty to notify the opposing party of any
additional evidence subject to either mandatory discovery or court ordered discretionary additional evidence subject to either mandatory discovery or court ordered discretionary
discovery that is uncovered. Pa.R.Crim.P. 573(D). discovery that is uncovered. Pa.R.Crim.P. 573(D).
A. Disclosures that are Mandatory by the Commonwealth A. Disclosures that are Mandatory by the Commonwealth
Certain categories of information must be disclosed by the Commonwealth upon Certain categories of information must be disclosed by the Commonwealth upon
request by the defendant, in the absence of a protective order. Pa.R.Crim.P. 573(B). As a request by the defendant, in the absence of a protective order. Pa.R.Crim.P. 573(B). As a
general rule, the Commonwealth should exercise the utmost good faith in responding general rule, the Commonwealth should exercise the utmost good faith in responding
to mandatory discovery requests. Commonwealth v. Long, 753 A.2d 272, 276 (Pa. Super. to mandatory discovery requests. Commonwealth v. Long, 753 A.2d 272, 276 (Pa. Super.
2000). However, the Commonwealth is only required to disclose evidence which is within 2000). However, the Commonwealth is only required to disclose evidence which is within
its control; it need not do investigative work for the defendant. Commonwealth v. Miller, its control; it need not do investigative work for the defendant. Commonwealth v. Miller,
765 A.2d 1151, 1154 (Pa. Super. 2001)(abrogated on other grounds by Commonwealth 765 A.2d 1151, 1154 (Pa. Super. 2001)(abrogated on other grounds by Commonwealth
v. Melendez-Rodriguez, 856 A.2d 1278 (Pa. Super. 2004)(en banc)). v. Melendez-Rodriguez, 856 A.2d 1278 (Pa. Super. 2004)(en banc)).
In Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001), the Supreme In Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001), the Supreme
Court of Pennsylvania held that a Brady11 violation occurs when a prosecutor fails to Court of Pennsylvania held that a Brady11 violation occurs when a prosecutor fails to
disclose evidence favorable to the accused and known only to the police, even though the disclose evidence favorable to the accused and known only to the police, even though the
prosecutor is unaware of the existence of the evidence. The Brady obligation to disclose prosecutor is unaware of the existence of the evidence. The Brady obligation to disclose
exculpatory evidence extends to files of police agencies of the same government bringing exculpatory evidence extends to files of police agencies of the same government bringing
the prosecution. Id. at 413, 781 A.2d at 1142. See also, Commonwealth v. Simpson, --- the prosecution. Id. at 413, 781 A.2d at 1142. See also, Commonwealth v. Simpson, ---
Pa. ---, 66 A.3d 253, 267 (2013). Pa. ---, 66 A.3d 253, 267 (2013).
Additionally, it must be noted that the discovery and disclosure of exculpatory Additionally, it must be noted that the discovery and disclosure of exculpatory
evidence, after trial has already begun and which directly contradicts the defendants evidence, after trial has already begun and which directly contradicts the defendants
opening argument, has been held to be grounds for the declaration of a mistrial. opening argument, has been held to be grounds for the declaration of a mistrial.
Commonwealth v. Montgomery, 533 Pa. 491, 626 A.2d 109 (1993), abrogated in part, Commonwealth v. Montgomery, 533 Pa. 491, 626 A.2d 109 (1993), abrogated in part,
Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001). Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001).
11 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 11 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Pretrial Pretrial
1. Exculpatory evidence 1. Exculpatory evidence
First and foremost, the Commonwealth has a continuing duty to provide First and foremost, the Commonwealth has a continuing duty to provide
any exculpatory evidence. Pa.R.Crim.P. 573(B)(1)(a); Brady v. Maryland, 373 any exculpatory evidence. Pa.R.Crim.P. 573(B)(1)(a); Brady v. Maryland, 373
U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This duty extends to exculpatory U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This duty extends to exculpatory
evidence that is relevant either to guilt or punishment. Pa.R.Crim.P. 573(B)(1) evidence that is relevant either to guilt or punishment. Pa.R.Crim.P. 573(B)(1)
(a). (a).
In order to establish a violation of this requirement, a defendant must In order to establish a violation of this requirement, a defendant must
establish that: establish that:
(1) the prosecution concealed evidence; (1) the prosecution concealed evidence;
(2) which was favorable to him; and (2) which was favorable to him; and
(3) prejudice to the defendant arising from the concealment. (3) prejudice to the defendant arising from the concealment.
Commonwealth v. Simpson, --- Pa. ---, 66 A.2d 253, 264 (2013); Commonwealth Commonwealth v. Simpson, --- Pa. ---, 66 A.2d 253, 264 (2013); Commonwealth
v. Chambers, 570 Pa. 3, 28, 807 A.2d 872, 887 (2002), cert. denied, 504 U.S. 946, v. Chambers, 570 Pa. 3, 28, 807 A.2d 872, 887 (2002), cert. denied, 504 U.S. 946,
112 S.Ct. 2290, 119 L.Ed.2d 214 (1992). 112 S.Ct. 2290, 119 L.Ed.2d 214 (1992).
The Commonwealth is responsible for disclosing evidence contained The Commonwealth is responsible for disclosing evidence contained
in the files of both the district attorney and the police agencies of the same in the files of both the district attorney and the police agencies of the same
government that is prosecuting the defendant. Commonwealth v. Burke, 566 Pa. government that is prosecuting the defendant. Commonwealth v. Burke, 566 Pa.
402, 413, 781 A.2d 1136, 1142 (2001). However, the Commonwealth does not 402, 413, 781 A.2d 1136, 1142 (2001). However, the Commonwealth does not
violate this requirement if the defendant had equal access to the information violate this requirement if the defendant had equal access to the information
and knew or could have known, through reasonable diligence, of the evidence. and knew or could have known, through reasonable diligence, of the evidence.
Commonwealth v. Chamberlain, 612 Pa. 107, 162, 20 A.3d 381, 413 (2011), Commonwealth v. Chamberlain, 612 Pa. 107, 162, 20 A.3d 381, 413 (2011),
cert. denied, 132 S.Ct. 2377, 182 L.Ed.2d 1017 (2012); Commonwealth v. Morris, cert. denied, 132 S.Ct. 2377, 182 L.Ed.2d 1017 (2012); Commonwealth v. Morris,
573 Pa. 157, 178, 822 A.2d 684, 696 (2003). 573 Pa. 157, 178, 822 A.2d 684, 696 (2003).
2. Confessions or inculpatory statements 2. Confessions or inculpatory statements
The second category of evidence that is subject to mandatory disclosure The second category of evidence that is subject to mandatory disclosure
by the Commonwealth upon request involves any confession or inculpatory by the Commonwealth upon request involves any confession or inculpatory
statements made by the defendant that are within the possession or control of statements made by the defendant that are within the possession or control of
the Commonwealth. Pa.R.Crim.P. 573(B)(1)(b). The Commonwealth must also the Commonwealth. Pa.R.Crim.P. 573(B)(1)(b). The Commonwealth must also
disclose the identity of the person(s) to whom such statements were made, disclose the identity of the person(s) to whom such statements were made,
if the information is within the possession or control of the attorney for the if the information is within the possession or control of the attorney for the
Commonwealth. Id. Commonwealth. Id.
3. Prior criminal record of the defendant 3. Prior criminal record of the defendant
The Commonwealth must also disclose any prior criminal record of the The Commonwealth must also disclose any prior criminal record of the
defendant of which the Commonwealth is aware. Pa.R.Crim.P. 573(B)(1)(c). defendant of which the Commonwealth is aware. Pa.R.Crim.P. 573(B)(1)(c).
However, if defense counsel is aware of prior criminal assaults perpetrated by the However, if defense counsel is aware of prior criminal assaults perpetrated by the
defendant due to previous representation of the defendant, the Commonwealth defendant due to previous representation of the defendant, the Commonwealth
Pretrial Pretrial
does not commit a per se violation of the rule by failing to disclose such assaults. does not commit a per se violation of the rule by failing to disclose such assaults.
Commonwealth v. Elliott, 549 Pa. 132, 145-147, 700 A.2d 1243, 1249-1250 Commonwealth v. Elliott, 549 Pa. 132, 145-147, 700 A.2d 1243, 1249-1250
(1997), cert. denied, 524 U.S. 955, 118 S.Ct. 2375, 141 L.Ed.2d 742 (1998), (1997), cert. denied, 524 U.S. 955, 118 S.Ct. 2375, 141 L.Ed.2d 742 (1998),
abrogated on other grounds, Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d abrogated on other grounds, Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d
385 (2003), cert. denied, 543 U.S. 822, 125 S.Ct. 30, 160 L.Ed.2d 31 (2004). 385 (2003), cert. denied, 543 U.S. 822, 125 S.Ct. 30, 160 L.Ed.2d 31 (2004).
4. Identifications of the defendant 4. Identifications of the defendant
Another category of evidence that the Commonwealth must disclose upon Another category of evidence that the Commonwealth must disclose upon
request, and in the absence of a protective order, pertains to any identification request, and in the absence of a protective order, pertains to any identification
of the defendant by voice, photograph, or in-person identification. Pa.R.Crim.P., of the defendant by voice, photograph, or in-person identification. Pa.R.Crim.P.,
573(B)(1)(d). Although the Commonwealth must disclose that an eyewitness 573(B)(1)(d). Although the Commonwealth must disclose that an eyewitness
failed to identify the defendant in a pre-trial photographic array, a failure by the failed to identify the defendant in a pre-trial photographic array, a failure by the
Commonwealth to disclose a pre-trial identification of defendant by photographic Commonwealth to disclose a pre-trial identification of defendant by photographic
array was found to be harmless where the identity of the defendant was not at array was found to be harmless where the identity of the defendant was not at
issue in the case. Commonwealth v. Davis, 704 A.2d 650, 653 (Pa. Super. 1997), issue in the case. Commonwealth v. Davis, 704 A.2d 650, 653 (Pa. Super. 1997),
appeal denied, 553 Pa. 704, 719 A.2d 744 (1998), cert. denied, 525 U.S. 1026 appeal denied, 553 Pa. 704, 719 A.2d 744 (1998), cert. denied, 525 U.S. 1026
(1998). (1998).
5. Results of scientific tests and other expert evaluations 5. Results of scientific tests and other expert evaluations
The Commonwealth, upon request, must also disclose the results The Commonwealth, upon request, must also disclose the results
and reports of scientific tests, expert opinions, polygraph examinations, and and reports of scientific tests, expert opinions, polygraph examinations, and
physical or mental examinations in the Commonwealths control or possession. physical or mental examinations in the Commonwealths control or possession.
Pa.R.Crim.P. 573(B)(1)(e). This provision does not require the Commonwealth to Pa.R.Crim.P. 573(B)(1)(e). This provision does not require the Commonwealth to
create a written summary of an experts findings, if the expert has not prepared a create a written summary of an experts findings, if the expert has not prepared a
written report. Commonwealth v. Blasioli, 685 A.2d 151, 160 (Pa. Super. 1996), written report. Commonwealth v. Blasioli, 685 A.2d 151, 160 (Pa. Super. 1996),
affd, 552 Pa. 149, 713 A.2d 1117 (1998). affd, 552 Pa. 149, 713 A.2d 1117 (1998).
The defendants right to access an alleged victims records held by an The defendants right to access an alleged victims records held by an
agency, hospital or rape crisis center is limited by any privilege that may protect agency, hospital or rape crisis center is limited by any privilege that may protect
the confidentiality of the alleged victims records. Commonwealth v. Eck, 605 the confidentiality of the alleged victims records. Commonwealth v. Eck, 605
A.2d 1248 (Pa. Super. 1992). A defendants confrontation and compulsory process A.2d 1248 (Pa. Super. 1992). A defendants confrontation and compulsory process
rights must yield to an absolute statutory privilege. Commonwealth v. Mejia- rights must yield to an absolute statutory privilege. Commonwealth v. Mejia-
Arias, 734 A.2d 870, 875 (Pa. Super. 1999); Commonwealth v. Askew, 666 A.2d Arias, 734 A.2d 870, 875 (Pa. Super. 1999); Commonwealth v. Askew, 666 A.2d
1062, 1065 (Pa. Super. 1995), appeal denied, 546 Pa. 635, 683 A.2d 876 (1996). 1062, 1065 (Pa. Super. 1995), appeal denied, 546 Pa. 635, 683 A.2d 876 (1996).
For example, see the privilege granted to sexual assault counselors, 42 Pa. Cons. For example, see the privilege granted to sexual assault counselors, 42 Pa. Cons.
Stat. Ann. 5945.1. Of course, the privilege may be deemed waived if the item is Stat. Ann. 5945.1. Of course, the privilege may be deemed waived if the item is
in the possession of the Commonwealth. See Commonwealth v. Higby, 559 A.2d in the possession of the Commonwealth. See Commonwealth v. Higby, 559 A.2d
939, 940 (1989), appeal denied, 525 Pa. 578, 575 A.2d 109 (1990). 939, 940 (1989), appeal denied, 525 Pa. 578, 575 A.2d 109 (1990).
The Constitutional right to confront an accuser does not entitle a defendant The Constitutional right to confront an accuser does not entitle a defendant
to an unsupervised review of psychiatric records of an alleged victim that are in to an unsupervised review of psychiatric records of an alleged victim that are in
the possession of the Commonwealth. Rather, the defendant is entitled to have the possession of the Commonwealth. Rather, the defendant is entitled to have
the trial court conduct an in camera review of the Commonwealths records, the trial court conduct an in camera review of the Commonwealths records,
Pretrial Pretrial
after which the trial court will determine the materiality of any documents in the after which the trial court will determine the materiality of any documents in the
possession of the Commonwealth. Commonwealth v. Byuss, 539 A.2d 852, 853- possession of the Commonwealth. Commonwealth v. Byuss, 539 A.2d 852, 853-
854 (Pa. Super. 1988). 854 (Pa. Super. 1988).
In addition, as long as the Commonwealth promptly produces the results In addition, as long as the Commonwealth promptly produces the results
of any scientific test or evaluation, it does not violate the mandatory disclosure of any scientific test or evaluation, it does not violate the mandatory disclosure
requirement by initially failing to diligently pursue the underlying test or requirement by initially failing to diligently pursue the underlying test or
evaluation. Commonwealth v. Smith, 599 A.2d 1350 (Pa. Super. 1991), appeal evaluation. Commonwealth v. Smith, 599 A.2d 1350 (Pa. Super. 1991), appeal
dismissed, 534 Pa. 273, 632 A.2d 306 (1993). dismissed, 534 Pa. 273, 632 A.2d 306 (1993).
6. Tangible evidence 6. Tangible evidence
The Commonwealth must also disclose all tangible evidence in its The Commonwealth must also disclose all tangible evidence in its
possession. Pa.R.Crim.P. 573(B)(1)(f). The rule provides a non-exhaustive list of possession. Pa.R.Crim.P. 573(B)(1)(f). The rule provides a non-exhaustive list of
examples such as documents, photographs, and fingerprints. Id. Audio cassette examples such as documents, photographs, and fingerprints. Id. Audio cassette
recordings have been treated as tangible evidence. Commonwealth v. Brocco, recordings have been treated as tangible evidence. Commonwealth v. Brocco,
396 A.2d 1371, 1378 (Pa. Super. 1979). 396 A.2d 1371, 1378 (Pa. Super. 1979).
When faced with a discovery request for tangible evidence, the When faced with a discovery request for tangible evidence, the
Commonwealth should exercise the utmost good faith in disclosing such evidence. Commonwealth should exercise the utmost good faith in disclosing such evidence.
Commonwealth v. Thiel, 470 A.2d 145 (Pa. Super. 1983) (Commonwealths Commonwealth v. Thiel, 470 A.2d 145 (Pa. Super. 1983) (Commonwealths
failure to disclose tangible evidence that buttressed the credibility of its primary failure to disclose tangible evidence that buttressed the credibility of its primary
witness constituted a reversible error). witness constituted a reversible error).
7. Transcripts and recordings of electronic surveillance 7. Transcripts and recordings of electronic surveillance
Finally, the Commonwealth must produce the transcripts and recordings Finally, the Commonwealth must produce the transcripts and recordings
of any electronic surveillance and the authority under which such surveillance of any electronic surveillance and the authority under which such surveillance
was authorized. Pa.R.Crim.P. 573 (B)(1)(g). was authorized. Pa.R.Crim.P. 573 (B)(1)(g).
B. Disclosures by the Commonwealth at the Discretion of the Court B. Disclosures by the Commonwealth at the Discretion of the Court
In all court cases (except as provided in Pa.R.Crim.P. 230 Disclosing of testimony In all court cases (except as provided in Pa.R.Crim.P. 230 Disclosing of testimony
before investigating grand juries), a defendant may file a motion for pretrial discovery before investigating grand juries), a defendant may file a motion for pretrial discovery
seeking the production of certain types of evidence that are not included under the seeking the production of certain types of evidence that are not included under the
mandatory discovery provisions. Pa.R.Crim.P. 573(B)(2). The court has the discretion mandatory discovery provisions. Pa.R.Crim.P. 573(B)(2). The court has the discretion
to permit or deny such discovery. Id. to permit or deny such discovery. Id.
The trial court exercising its discretion to grant or deny a request for discretionary The trial court exercising its discretion to grant or deny a request for discretionary
discovery should be guided by the principle to allow as much discovery prior to trial as discovery should be guided by the principle to allow as much discovery prior to trial as
will, consistent with the protection of persons, effective law enforcement, the adversary will, consistent with the protection of persons, effective law enforcement, the adversary
system, and national security, provide adequate information for informed pleas, expedite system, and national security, provide adequate information for informed pleas, expedite
trials, minimize surprise, afford opportunity for effective cross-examination, and meet trials, minimize surprise, afford opportunity for effective cross-examination, and meet
the requirements of due process. Commonwealth v. Thiel, 470 A.2d 145, 148 (Pa. Super. the requirements of due process. Commonwealth v. Thiel, 470 A.2d 145, 148 (Pa. Super.
1983). 1983).
Pretrial Pretrial
1. Names and addresses of eyewitnesses 1. Names and addresses of eyewitnesses
The court may order the Commonwealth to disclose the names and The court may order the Commonwealth to disclose the names and
addresses of any eyewitnesses known to the Commonwealth. Pa.R.Crim.P. 573(B) addresses of any eyewitnesses known to the Commonwealth. Pa.R.Crim.P. 573(B)
(2)(a)(i); Commonwealth v. Jones, 542 Pa. 464, 508-509, 668 A.2d 491, 512- (2)(a)(i); Commonwealth v. Jones, 542 Pa. 464, 508-509, 668 A.2d 491, 512-
513 (1995), cert. denied, 519 U.S. 826, 117 S.Ct. 89, 136 L.Ed.2d 45 (1996). This 513 (1995), cert. denied, 519 U.S. 826, 117 S.Ct. 89, 136 L.Ed.2d 45 (1996). This
rule covers eyewitnesses only;12 there is no requirement that the Commonwealth rule covers eyewitnesses only;12 there is no requirement that the Commonwealth
reveal the names and addresses of all of its witnesses. Commonwealth v. Colson, reveal the names and addresses of all of its witnesses. Commonwealth v. Colson,
507 Pa. 440, 463, 490 A.2d 811, 823 (1985), cert. denied, 476 U.S. 1140 (1986) 507 Pa. 440, 463, 490 A.2d 811, 823 (1985), cert. denied, 476 U.S. 1140 (1986)
(abrogated in part, Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001)). (abrogated in part, Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001)).
However, even if the Commonwealth does not intend to call an eyewitness to However, even if the Commonwealth does not intend to call an eyewitness to
testify, it still must identify the witness in order to comply with court ordered testify, it still must identify the witness in order to comply with court ordered
discovery under this section. Commonwealth v. Allen, 429 A.2d 1113, 1116 (Pa. discovery under this section. Commonwealth v. Allen, 429 A.2d 1113, 1116 (Pa.
Super. 1981). Super. 1981).
2. Verbatim or substantially verbatim statements of eyewitnesses 2. Verbatim or substantially verbatim statements of eyewitnesses
The Commonwealth may be ordered to disclose all written or recorded The Commonwealth may be ordered to disclose all written or recorded
statements made by eyewitnesses. Pa.R.Crim.P. 573(B)(2)(a)(ii). Furthermore, statements made by eyewitnesses. Pa.R.Crim.P. 573(B)(2)(a)(ii). Furthermore,
the Commonwealth may be ordered to disclose substantially verbatim oral the Commonwealth may be ordered to disclose substantially verbatim oral
statements made by eyewitnesses. Pa.R.Crim.P. 573(B)(2)(a)(ii). When there is statements made by eyewitnesses. Pa.R.Crim.P. 573(B)(2)(a)(ii). When there is
a dispute over whether writing is a substantially verbatim record, the court must a dispute over whether writing is a substantially verbatim record, the court must
examine the writing and make a finding. Commonwealth v. Alston, 864 A.2d examine the writing and make a finding. Commonwealth v. Alston, 864 A.2d
539, 547 (Pa. Super. 2004) (en banc). The assertion of work product privilege 539, 547 (Pa. Super. 2004) (en banc). The assertion of work product privilege
does not automatically remove such writings from the realm of discoverable does not automatically remove such writings from the realm of discoverable
material. Id. material. Id.
Commonwealth v. Piole, 636 A.2d 1143, 1145 (Pa. Super. 1994), Commonwealth v. Piole, 636 A.2d 1143, 1145 (Pa. Super. 1994),
abrogated in part, Commonwealth v. Burke, 566 Pa. 402, 781 A.2d abrogated in part, Commonwealth v. Burke, 566 Pa. 402, 781 A.2d
1136 (2001)(Mere notes taken by an officer while questioning a 1136 (2001)(Mere notes taken by an officer while questioning a
witness are insufficient; the statement must be substantially verbatim witness are insufficient; the statement must be substantially verbatim
or be adopted by the witness). or be adopted by the witness).
Commonwealth v. Boczkowski, 577 Pa. 421, 458, 846 A.2d 75, 97 Commonwealth v. Boczkowski, 577 Pa. 421, 458, 846 A.2d 75, 97
(2004) (Commonwealth is not responsible for statements it was (2004) (Commonwealth is not responsible for statements it was
unaware of and that it did not possess). unaware of and that it did not possess).
The rule set forth by this section applies only to eyewitnesses, not to The rule set forth by this section applies only to eyewitnesses, not to
other witnesses. In Commonwealth v. Elliott, 549 Pa. 132, 145-147, 700 A.2d other witnesses. In Commonwealth v. Elliott, 549 Pa. 132, 145-147, 700 A.2d
1243, 1249-1250 (1997), cert. denied, 524 U.S. 955, 118 S.Ct. 2375, 141 L.Ed.2d 1243, 1249-1250 (1997), cert. denied, 524 U.S. 955, 118 S.Ct. 2375, 141 L.Ed.2d
742 (1998)(abrogated on other grounds, Commonwealth v. Freeman, 573 Pa. 742 (1998)(abrogated on other grounds, Commonwealth v. Freeman, 573 Pa.
532, 827 A.2d 385 (2003), cert. denied, 543 U.S. 822, 125 S.Ct. 30, 160 L.Ed.2d 532, 827 A.2d 385 (2003), cert. denied, 543 U.S. 822, 125 S.Ct. 30, 160 L.Ed.2d
31 (2004)), pretrial statements made by victims of prior assaults perpetrated by 31 (2004)), pretrial statements made by victims of prior assaults perpetrated by
defendant were held not subject to this rule. defendant were held not subject to this rule.
12 Under Pa.R.CRim.P. 573(B)(2)(d), the trial court, in its discretion, can order the Commonwealth to disclose the names of witnesses not 12 Under Pa.R.CRim.P. 573(B)(2)(d), the trial court, in its discretion, can order the Commonwealth to disclose the names of witnesses not
necessarily eyewitnesses if in the interests of justice. Commonwealth v. Jones, supra, 542 Pa. at 508, 668 A.2d at 512. necessarily eyewitnesses if in the interests of justice. Commonwealth v. Jones, supra, 542 Pa. at 508, 668 A.2d at 512.
Pretrial Pretrial
3. Verbatim or substantially verbatim statements of co- defendants, co- 3. Verbatim or substantially verbatim statements of co- defendants, co-
conspirators or accomplices conspirators or accomplices
The Commonwealth may be ordered to disclose all written or recorded The Commonwealth may be ordered to disclose all written or recorded
statements and substantially verbatim oral statements made by co-defendants, statements and substantially verbatim oral statements made by co-defendants,
co-conspirators or accomplices. Pa.R.Crim.P. 573(B)(2)(a)(iii). Whether the co- co-conspirators or accomplices. Pa.R.Crim.P. 573(B)(2)(a)(iii). Whether the co-
defendant, co-conspirator or accomplice has been charged does not affect the defendant, co-conspirator or accomplice has been charged does not affect the
courts power to order such discovery. Id. courts power to order such discovery. Id.
4. Other evidence specifically identified by the defendant. 4. Other evidence specifically identified by the defendant.
The Commonwealth may be ordered to disclose any other evidence The Commonwealth may be ordered to disclose any other evidence
specifically identified by the defendant, provided the defendant can additionally specifically identified by the defendant, provided the defendant can additionally
establish that [the] disclosure would be in the interests of justice. Pa.R.Crim.P. establish that [the] disclosure would be in the interests of justice. Pa.R.Crim.P.
573(B)(2)(a)(iv). This includes 573(B)(2)(a)(iv). This includes
any information concerning any prosecutor, investigator, any information concerning any prosecutor, investigator,
or police officer involved in the case who has received or police officer involved in the case who has received
either valuable consideration, or an oral or written promise either valuable consideration, or an oral or written promise
or contract for valuable consideration, for information or contract for valuable consideration, for information
concerning the case, or for the production of any work concerning the case, or for the production of any work
describing the case, or for the right to depict the character of describing the case, or for the right to depict the character of
the prosecutor or investigator in connection with his or her the prosecutor or investigator in connection with his or her
involvement in the case. involvement in the case.
Pa.R.Crim.P. 573(B)(2)(a)(iv), comment. Pa.R.Crim.P. 573(B)(2)(a)(iv), comment.
5. Experts the Commonwealth intends to call at trial 5. Experts the Commonwealth intends to call at trial
If the Commonwealth intends to call an expert to testify and that expert If the Commonwealth intends to call an expert to testify and that expert
has not prepared a formal report, a motion may be made to the court to order has not prepared a formal report, a motion may be made to the court to order
such expert to prepare, and the Commonwealth disclose, a report. Pa.R.Crim.P. such expert to prepare, and the Commonwealth disclose, a report. Pa.R.Crim.P.
573(B)(2)(b). The court may order that the report address: the subject matter 573(B)(2)(b). The court may order that the report address: the subject matter
on which the expert is expected to testify; the substance of the facts to which on which the expert is expected to testify; the substance of the facts to which
the expert is expected to testify; and a summary of the experts opinions and the expert is expected to testify; and a summary of the experts opinions and
conclusions. Id. conclusions. Id.
This rule is not intended to require a prepared report in every case. This rule is not intended to require a prepared report in every case.
Pa.R.Crim.P. 573, comment. Rather, the court should make a determination on Pa.R.Crim.P. 573, comment. Rather, the court should make a determination on
a case-by-case basis as to whether a report is required. Id. Factors that are a case-by-case basis as to whether a report is required. Id. Factors that are
relevant are whether the parties are familiar with the expert and whether the relevant are whether the parties are familiar with the expert and whether the
expert testifies on the same subject routinely. Id. expert testifies on the same subject routinely. Id.
C. Mandatory Disclosures by the Defendant C. Mandatory Disclosures by the Defendant
Pretrial Pretrial
1. Alibi and insanity defense 1. Alibi and insanity defense
The defendant must disclose his intention to present either an alibi The defendant must disclose his intention to present either an alibi
defense,13 or insanity defense,14 within the time required for filing an omnibus defense,13 or insanity defense,14 within the time required for filing an omnibus
pre-trial motion. For a detailed discussion of what is required of a defendant pre-trial motion. For a detailed discussion of what is required of a defendant
under these rules, please see Chapter 5, Section 5.2 ALIBI DEFENSE, and Section under these rules, please see Chapter 5, Section 5.2 ALIBI DEFENSE, and Section
5.7 5.7
D. Disclosures by the Defendant at the Discretion of the Court. D. Disclosures by the Defendant at the Discretion of the Court.
In all court cases, the Commonwealth may file a motion for pretrial discovery In all court cases, the Commonwealth may file a motion for pretrial discovery
seeking the production of certain types of evidence that are not included under the seeking the production of certain types of evidence that are not included under the
mandatory discovery provisions. Pa.R.Crim.P. 573(C)(2). The court may order the mandatory discovery provisions. Pa.R.Crim.P. 573(C)(2). The court may order the
defendant to disclose such evidence upon a showing by the Commonwealth that the defendant to disclose such evidence upon a showing by the Commonwealth that the
evidence is material to its case and that the request is reasonable. Id. evidence is material to its case and that the request is reasonable. Id.
1. Results or reports of physical or mental examinations and 1. Results or reports of physical or mental examinations and
scientific tests scientific tests
The defendant may be ordered by the court to disclose the results and The defendant may be ordered by the court to disclose the results and
reports obtained from physical or mental examinations, as well as the results and reports obtained from physical or mental examinations, as well as the results and
reports obtained from scientific tests, that the defendant intends to introduce as reports obtained from scientific tests, that the defendant intends to introduce as
evidence in his case-in-chief. Pa.R.Crim.P. 573(C)(1)(a). The court may also order evidence in his case-in-chief. Pa.R.Crim.P. 573(C)(1)(a). The court may also order
the defendant to disclose reports prepared by a witness whom the defendant the defendant to disclose reports prepared by a witness whom the defendant
intends to call at the trial. Id. However, the court may only order such discovery intends to call at the trial. Id. However, the court may only order such discovery
if the defendant has requested and received discovery under Pa.R.Crim.P. 573(B) if the defendant has requested and received discovery under Pa.R.Crim.P. 573(B)
(1)(e) (Mandatory disclosure by Commonwealth). (1)(e) (Mandatory disclosure by Commonwealth).
Commonwealth v. Faulkner, 528 Pa. 57, 74, 595 A.2d 28, 37 (1991), Commonwealth v. Faulkner, 528 Pa. 57, 74, 595 A.2d 28, 37 (1991),
cert. denied, 503 U.S. 989 (1992)(trial court did not abuse its discretion cert. denied, 503 U.S. 989 (1992)(trial court did not abuse its discretion
when it ordered defendant to produce the results of a psychiatric when it ordered defendant to produce the results of a psychiatric
evaluation when defendant refused to submit to an examination by evaluation when defendant refused to submit to an examination by
the Commonwealths psychiatrist). the Commonwealths psychiatrist).
2. Names and addresses of eyewitnesses 2. Names and addresses of eyewitnesses

The court may order the defendant to disclose the names and addresses The court may order the defendant to disclose the names and addresses
of any eyewitnesses the defendant intends to call in his case in chief. Pa.R.Crim.P. of any eyewitnesses the defendant intends to call in his case in chief. Pa.R.Crim.P.
573(C)(1)(b). However, the court may only order such discovery if the defendant 573(C)(1)(b). However, the court may only order such discovery if the defendant
has requested and received discovery pursuant to Pa.R.Crim.P. 573(B)(2)(a)(i) has requested and received discovery pursuant to Pa.R.Crim.P. 573(B)(2)(a)(i)
(Disretionary disclosure by Commonwealth). Id. (Disretionary disclosure by Commonwealth). Id.
Commonwealth v. Malone, 514 A.2d 612 (Pa. Super. 1986) (Trial Commonwealth v. Malone, 514 A.2d 612 (Pa. Super. 1986) (Trial
court erred in precluding testimony of eyewitness as Commonwealth court erred in precluding testimony of eyewitness as Commonwealth
had not filed a motion for pre-trial discovery). had not filed a motion for pre-trial discovery).
13 Pa.R.CRim.P. 567(A). 13 Pa.R.CRim.P. 567(A).
14 Pa.R.CRim.P. 568(A)(1). 14 Pa.R.CRim.P. 568(A)(1).
Pretrial Pretrial
3. Experts the defendant intends to call at trial 3. Experts the defendant intends to call at trial
If the defendant intends to call an expert to testify at any proceeding, the If the defendant intends to call an expert to testify at any proceeding, the
court may order such expert to prepare, and the defendant disclose, a report. court may order such expert to prepare, and the defendant disclose, a report.
Pa.R.Crim.P. 573(C)(2). The report should state the subject matter on which Pa.R.Crim.P. 573(C)(2). The report should state the subject matter on which
the expert is expected to testify, the substance of the facts to which the expert is the expert is expected to testify, the substance of the facts to which the expert is
expected to testify, and a summary of the experts opinions and conclusions. Id. expected to testify, and a summary of the experts opinions and conclusions. Id.
This rule is not intended to require a prepared report in every case. Id., This rule is not intended to require a prepared report in every case. Id.,
comment. Rather, the court should make a determination on a case-by-case basis comment. Rather, the court should make a determination on a case-by-case basis
as to whether a report is required. Id. Factors that are relevant are whether the as to whether a report is required. Id. Factors that are relevant are whether the
parties are familiar with the expert and whether the expert testifies on the same parties are familiar with the expert and whether the expert testifies on the same
subject routinely. Id. subject routinely. Id.
E. Remedies E. Remedies
Any violation of Brady is also a violation of Pa.R.Crim.P. 573(B)(1)(a), for which Any violation of Brady is also a violation of Pa.R.Crim.P. 573(B)(1)(a), for which
the trial court may impose a sanction. Commonwealth v. Sullivan, 829 A.2d 795, the trial court may impose a sanction. Commonwealth v. Sullivan, 829 A.2d 795,
802-803 (Pa. Super. 2003), appeal denied, 574 Pa. 773, 833 A.2d 143 (2003). See also, 802-803 (Pa. Super. 2003), appeal denied, 574 Pa. 773, 833 A.2d 143 (2003). See also,
Pa.R.Crim.P. 573(E) (relating to remedies for violations of discovery rule). Pa.R.Crim.P. 573(E) (relating to remedies for violations of discovery rule).
If a party violates the provisions of Pa.R.Crim.P. 573, the court has the discretion If a party violates the provisions of Pa.R.Crim.P. 573, the court has the discretion
to choose from several remedies. Pa.R.Crim.P. 573(E). Although this discretion is to choose from several remedies. Pa.R.Crim.P. 573(E). Although this discretion is
considered broad, Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491 (1995), cert. considered broad, Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491 (1995), cert.
denied, 519 U.S. 826, 117 S.Ct. 89, 136 L.Ed.2d 45 (1996), it is not unfettered. denied, 519 U.S. 826, 117 S.Ct. 89, 136 L.Ed.2d 45 (1996), it is not unfettered.
The trial court possesses discretion in fashioning an appropriate The trial court possesses discretion in fashioning an appropriate
remedy for a violation of the rules of discovery. [Commonwealth remedy for a violation of the rules of discovery. [Commonwealth
v. Burke, 566 Pa. 402, 415, 781 A.2d 1136, 1143 (2001)]; see v. Burke, 566 Pa. 402, 415, 781 A.2d 1136, 1143 (2001)]; see
also Commonwealth v. Crossley, 439 Pa.Super. 342, 653 A.2d also Commonwealth v. Crossley, 439 Pa.Super. 342, 653 A.2d
1288 (1995). However, we must remember its discretion is not 1288 (1995). However, we must remember its discretion is not
unfettered. Id. In most cases, ordering a continuance will be an unfettered. Id. In most cases, ordering a continuance will be an
adequate remedy. Commonwealth v. Yost, 348 Pa.Super. 297, adequate remedy. Commonwealth v. Yost, 348 Pa.Super. 297,
502 A.2d 216, 219 (1985). A continuance is appropriate where 502 A.2d 216, 219 (1985). A continuance is appropriate where
the undisclosed statement or other evidence is admissible and the undisclosed statement or other evidence is admissible and
the defendants only prejudice is surprise. Id. the defendants only prejudice is surprise. Id.
Commonwealth v. Smith, 955 A.2d 391, 395 (Pa. Super. 2008). Commonwealth v. Smith, 955 A.2d 391, 395 (Pa. Super. 2008).
1. Order production or inspection 1. Order production or inspection
The court may order the violating party to permit discovery or inspection. The court may order the violating party to permit discovery or inspection.
Pa.R.Crim.P. Rule 573(E). Pa.R.Crim.P. Rule 573(E).
Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995), cert. Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995), cert.
Pretrial Pretrial
denied, 516 U.S. 1128, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996)(production denied, 516 U.S. 1128, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996)(production
of letter written by defendant was the proper remedy for Commonwealths of letter written by defendant was the proper remedy for Commonwealths
violation of discovery order). violation of discovery order).
2. Grant of continuance 2. Grant of continuance
The court may grant a continuance to allow the aggrieved party a chance to The court may grant a continuance to allow the aggrieved party a chance to
prepare for the newly discovered evidence. Pa.R.Crim.P. 573(E). This remedy is prepare for the newly discovered evidence. Pa.R.Crim.P. 573(E). This remedy is
generally the favored remedy for discovery violations. See, e.g., Commonwealth generally the favored remedy for discovery violations. See, e.g., Commonwealth
v. Woodell, 496 A.2d 1210, 1213 (Pa. Super. 1985). This is especially so when the v. Woodell, 496 A.2d 1210, 1213 (Pa. Super. 1985). This is especially so when the
only prejudice suffered by the defendant is surprise. Commonwealth v. Johnson, only prejudice suffered by the defendant is surprise. Commonwealth v. Johnson,
3. Prohibit introduction of evidence not disclosed 3. Prohibit introduction of evidence not disclosed
The court may prohibit the party in violation from introducing The court may prohibit the party in violation from introducing
undisclosed evidence at trial. Pa.R.Crim.P. 573(E). The court may never preclude undisclosed evidence at trial. Pa.R.Crim.P. 573(E). The court may never preclude
the defendant from testifying in his own defense. Id. Generally, a defendant the defendant from testifying in his own defense. Id. Generally, a defendant
is required to establish prejudice before this severe sanction is imposed. See is required to establish prejudice before this severe sanction is imposed. See
e.g., Commonwealth v. Manchas, 633 A.2d 618, 625 (Pa. Super. 1993), appeal e.g., Commonwealth v. Manchas, 633 A.2d 618, 625 (Pa. Super. 1993), appeal
denied, 539 Pa. 647, 651 A.2d 535 (1994) (Defendant not entitled to exclusion of denied, 539 Pa. 647, 651 A.2d 535 (1994) (Defendant not entitled to exclusion of
Commonwealth witness where defendant did not establish prejudice, i.e., defense Commonwealth witness where defendant did not establish prejudice, i.e., defense
counsel was fully prepared at trial.). counsel was fully prepared at trial.).
4. Any other remedy the court deems just under the circumstances 4. Any other remedy the court deems just under the circumstances
The court may order any other remedy that it deems just under the The court may order any other remedy that it deems just under the
circumstances. Pa.R.Crim.P. 573(E). Included under this provision is the circumstances. Pa.R.Crim.P. 573(E). Included under this provision is the
discretion to order a new trial. discretion to order a new trial.
Examples: Examples:
Commonwealth v. Shelton, 536 Pa. 559, 640 A.2d 892 (1994) Commonwealth v. Shelton, 536 Pa. 559, 640 A.2d 892 (1994)
(Commonwealths willful failure to disclose new information linking (Commonwealths willful failure to disclose new information linking
defendant to drug sales warranted the grant of a new trial). defendant to drug sales warranted the grant of a new trial).
Commonwealth v. Johnson, 456 A.2d 988 (1983) (Commonwealths Commonwealth v. Johnson, 456 A.2d 988 (1983) (Commonwealths
failure to disclose defendants inculpatory statement required grant of failure to disclose defendants inculpatory statement required grant of
new trial). new trial).
However, in order to receive the remedy of a new trial, a defendant must However, in order to receive the remedy of a new trial, a defendant must
establish prejudice. Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491 (1995), establish prejudice. Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491 (1995),
cert. denied, 519 U.S. 826, 117 S.Ct. 89, 136 L.Ed.2d 45 (1996). Therefore, it is cert. denied, 519 U.S. 826, 117 S.Ct. 89, 136 L.Ed.2d 45 (1996). Therefore, it is
generally necessary for the court to hold a hearing to take evidence and allow generally necessary for the court to hold a hearing to take evidence and allow
the opposing party a chance to respond before imposing severe sanctions. the opposing party a chance to respond before imposing severe sanctions.
Pretrial Pretrial
Commonwealth v. Yost, 502 A.2d 216, 218 (Pa. Super. 1985). Commonwealth v. Yost, 502 A.2d 216, 218 (Pa. Super. 1985).
F. Protective Orders F. Protective Orders
Even with respect to mandated disclosures, either party may move the court for a Even with respect to mandated disclosures, either party may move the court for a
protective order. Pa.R.Crim.P. 573(F). The evidence to support a protective order must protective order. Pa.R.Crim.P. 573(F). The evidence to support a protective order must
be sufficient, and may be made entirely in the form of a written statement reviewed be sufficient, and may be made entirely in the form of a written statement reviewed
by the court in camera. Id. If the court grants a protective order following an in camera by the court in camera. Id. If the court grants a protective order following an in camera
showing, the entire text of the statement shall be sealed and preserved in the records of showing, the entire text of the statement shall be sealed and preserved in the records of
the court in order to allow for appellate review. Id. the court in order to allow for appellate review. Id.
At this time, there are no set standards for determining what is sufficient At this time, there are no set standards for determining what is sufficient
evidence to support a protective order. However, there is a safe harbor for trial courts, evidence to support a protective order. However, there is a safe harbor for trial courts,
as any error in granting a protective order may be cured by granting the defendant as any error in granting a protective order may be cured by granting the defendant
a continuance in order to prepare for or investigate any difficulty caused by the late a continuance in order to prepare for or investigate any difficulty caused by the late
disclosure. See e.g., Commonwealth v. Bonacurso, 500 Pa. 247, 252, 455 A.2d 1175, disclosure. See e.g., Commonwealth v. Bonacurso, 500 Pa. 247, 252, 455 A.2d 1175,
1178 (1983), cert. denied, 462 U.S. 1120 (1983)(abrogated in part, Commonwealth v. 1178 (1983), cert. denied, 462 U.S. 1120 (1983)(abrogated in part, Commonwealth v.
Burke, 566 Pa. 402, 781 A.2d 1136 (2001)); Commonwealth v. Brown, 544 Pa. 406, 421, Burke, 566 Pa. 402, 781 A.2d 1136 (2001)); Commonwealth v. Brown, 544 Pa. 406, 421,
676 A.2d 1178, 1185 (Pa. 1996), cert. denied, 519 U.S. 1043 (1996). 676 A.2d 1178, 1185 (Pa. 1996), cert. denied, 519 U.S. 1043 (1996).
G. Work Product G. Work Product
To the extent that a document constitutes the opinions, theories, or conclusions To the extent that a document constitutes the opinions, theories, or conclusions
of the attorney for either party, or agents for the attorney, it will not be required to be of the attorney for either party, or agents for the attorney, it will not be required to be
disclosed. Pa.R.Crim.P. 573(G). disclosed. Pa.R.Crim.P. 573(G).
Lepley v. Lycoming County Court of Common Pleas, 481 Pa. 565, 393 A.2d Lepley v. Lycoming County Court of Common Pleas, 481 Pa. 565, 393 A.2d
306 (Pa. Super. 1978) (Defense counsels recording of defendants preliminary 306 (Pa. Super. 1978) (Defense counsels recording of defendants preliminary
hearing was not a privileged work product). hearing was not a privileged work product).
In Commonwealth v. Hetzel, 822 A.2d 747, 758 (Pa. Super. 2003), appeal denied, In Commonwealth v. Hetzel, 822 A.2d 747, 758 (Pa. Super. 2003), appeal denied,
576 Pa. 710, 839 A.2d 350 (2003), photographs and dental tracings prepared by forensic 576 Pa. 710, 839 A.2d 350 (2003), photographs and dental tracings prepared by forensic
odontologist at the request of defense attorney were deemed protected work product. odontologist at the request of defense attorney were deemed protected work product.
The Superior Court stated: The Superior Court stated:
[T]he work product doctrine provides broader protections [T]he work product doctrine provides broader protections
than the attorney-client privilege and shields from disclosure than the attorney-client privilege and shields from disclosure
an attorneys (or his representatives) opinions, theories, or an attorneys (or his representatives) opinions, theories, or
conclusions. Pa.R.Crim.P. 573(G). The underlying purpose of the conclusions. Pa.R.Crim.P. 573(G). The underlying purpose of the
work product doctrine is to guard the mental processes of an work product doctrine is to guard the mental processes of an
attorney, providing a privileged area within which he can analyze attorney, providing a privileged area within which he can analyze
and prepare his clients case. Lepley v. Lycoming County Court and prepare his clients case. Lepley v. Lycoming County Court
of Common Pleas, 481 Pa. 565, 393 A.2d 306 (Pa. Super. 1978). of Common Pleas, 481 Pa. 565, 393 A.2d 306 (Pa. Super. 1978).
822 A.2d at 757 (footnote omitted). 822 A.2d at 757 (footnote omitted).
Pretrial Pretrial
6.7 OMNIBUS PRE-TRIAL MOTIONS 6.7 OMNIBUS PRE-TRIAL MOTIONS
An omnibus pre-trial motion is the method envisioned by the Rules of Criminal An omnibus pre-trial motion is the method envisioned by the Rules of Criminal
Procedure for resolving routine matters that commonly arise in criminal litigation. Procedure for resolving routine matters that commonly arise in criminal litigation.
Generally, all pre-trial requests for relief should be included in a single omnibus pre-trial Generally, all pre-trial requests for relief should be included in a single omnibus pre-trial
motion. Pa.R.Crim.P. 578. However, this rule is not intended to preclude other types of motion. Pa.R.Crim.P. 578. However, this rule is not intended to preclude other types of
motions from being filed. Id., comment. These other motions should, however, be filed motions from being filed. Id., comment. These other motions should, however, be filed
at the earliest feasible time. Id. at the earliest feasible time. Id.
A. Types of Relief A. Types of Relief
1. Continuance 1. Continuance
The omnibus pre-trial motion is an appropriate vehicle for filing a motion The omnibus pre-trial motion is an appropriate vehicle for filing a motion
for continuance. Pa.R.Crim.P. 578, comment. for continuance. Pa.R.Crim.P. 578, comment.
2. Severance, Joinder, or Consolidation 2. Severance, Joinder, or Consolidation
for severance, joinder, or consolidation. Pa.R.Crim.P. 578, comment. for severance, joinder, or consolidation. Pa.R.Crim.P. 578, comment.
Although under the scheme set forth in the Rules of Criminal Procedure, Although under the scheme set forth in the Rules of Criminal Procedure,
ordinarily offenses or defendants charged in separate indictments or informations ordinarily offenses or defendants charged in separate indictments or informations
will be tried separately, pursuant to Pa.R.Crim.P. 582(B), the District Attorney will be tried separately, pursuant to Pa.R.Crim.P. 582(B), the District Attorney
has the opportunity to serve a notice on the defendant(s) that the offenses or has the opportunity to serve a notice on the defendant(s) that the offenses or
defendants will be tried together. In such situations, if challenged, the trial court defendants will be tried together. In such situations, if challenged, the trial court
must review the following standards: must review the following standards:
(1) Offenses charged in separate indictments or (1) Offenses charged in separate indictments or
information may be tried together if: information may be tried together if:
(a) the evidence of each of the offenses would be (a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is admissible in a separate trial for the other and is
capable of separation by the jury so that there is capable of separation by the jury so that there is
no danger of confusion; or no danger of confusion; or
(b) the offenses charged are based on the same (b) the offenses charged are based on the same
act or transaction. act or transaction.
(2) Defendants charged in separate indictments or (2) Defendants charged in separate indictments or
informations may be tried together if they are alleged informations may be tried together if they are alleged
to have participated in the same act or transaction or in to have participated in the same act or transaction or in
the same series of acts or transactions constituting an the same series of acts or transactions constituting an
offense or offenses. offense or offenses.
Pretrial Pretrial
Pa.R.Crim.P. 582(A). Pa.R.Crim.P. 582(A).
Also, the trial court may order severance of offenses or defendants, Also, the trial court may order severance of offenses or defendants,
or provide other appropriate relief, if any party is prejudiced by offenses or or provide other appropriate relief, if any party is prejudiced by offenses or
defendants being tried together. Pa.R.Crim.P. 583. defendants being tried together. Pa.R.Crim.P. 583.
3. Suppression of Evidence 3. Suppression of Evidence
for suppression of evidence. Pa.R.Crim.P. 578, comment. If a defendant fails to for suppression of evidence. Pa.R.Crim.P. 578, comment. If a defendant fails to
raise a suppression issue in an omnibus pre-trial motion, he bears the burden of raise a suppression issue in an omnibus pre-trial motion, he bears the burden of
preserving the issue by establishing that the opportunity to argue for suppression preserving the issue by establishing that the opportunity to argue for suppression
did not previously exist or that the interests of justice require that the suppression did not previously exist or that the interests of justice require that the suppression
motion be heard. Pa.R.Crim.P. 581(B); Commonwealth v. Bodge, 389 A.2d 1172, motion be heard. Pa.R.Crim.P. 581(B); Commonwealth v. Bodge, 389 A.2d 1172,
1175 (Pa. Super. 1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 1175 (Pa. Super. 1978); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687
(Pa. Super. 1977), overruled on other grounds, Commonwealth v. Grant, 572 Pa. (Pa. Super. 1977), overruled on other grounds, Commonwealth v. Grant, 572 Pa.
48, 813 A.2d 726 (2002). 48, 813 A.2d 726 (2002).
Pa.R.Crim.P. 581 provides the procedure and standards for the suppression Pa.R.Crim.P. 581 provides the procedure and standards for the suppression
motion. motion.
The motion for suppression must state specifically and with particularity The motion for suppression must state specifically and with particularity
the evidence sought to be suppressed, the grounds relied upon for suppression, the evidence sought to be suppressed, the grounds relied upon for suppression,
and the facts and events in support of such grounds. Pa.R.Crim.P. 581(D). If the and the facts and events in support of such grounds. Pa.R.Crim.P. 581(D). If the
court deems that a hearing is necessary to resolve the motion to suppress, it must court deems that a hearing is necessary to resolve the motion to suppress, it must
order a hearing to be held either prior to or at trial and provide the attorney order a hearing to be held either prior to or at trial and provide the attorney
for the Commonwealth a reasonable opportunity for investigation. Pa.R.Crim.P. for the Commonwealth a reasonable opportunity for investigation. Pa.R.Crim.P.
581(E). 581(E).
The hearing should ordinarily be held in open court, but outside the The hearing should ordinarily be held in open court, but outside the
presence of the jury, if any. Pa.R.Crim.P. 581(F). The hearing should be recorded. presence of the jury, if any. Pa.R.Crim.P. 581(F). The hearing should be recorded.
Pa.R.Crim.P. 581(G). At the hearing, the Commonwealth has the burden of Pa.R.Crim.P. 581(G). At the hearing, the Commonwealth has the burden of
establishing that the challenged evidence was not obtained in violation of the establishing that the challenged evidence was not obtained in violation of the
defendants rights. Commonwealth v. West, 834 A.2d 625, 629 (Pa.Super. 2003), defendants rights. Commonwealth v. West, 834 A.2d 625, 629 (Pa.Super. 2003),
appeal denied, 586 Pa. 712, 889 A.2d 1216 (2005); Pa.R.Crim.P. 581(H). appeal denied, 586 Pa. 712, 889 A.2d 1216 (2005); Pa.R.Crim.P. 581(H).
Commonwealth v. Dutrieville, 932 A.2d 240, 242 (Pa. Super. 2007) Commonwealth v. Dutrieville, 932 A.2d 240, 242 (Pa. Super. 2007)
(It is trial courts province to pass on the credibility of witnesses and (It is trial courts province to pass on the credibility of witnesses and
assign the weight to be given to their testimony). assign the weight to be given to their testimony).
However, in Commonwealth v. Beaman, 846 A.2d 764 (Pa. Super. However, in Commonwealth v. Beaman, 846 A.2d 764 (Pa. Super.
2004), affd, 583 Pa. 636, 880 A.2d 578 (2005), the court held that 2004), affd, 583 Pa. 636, 880 A.2d 578 (2005), the court held that
when a defendant challenges the constitutionality of a statute which when a defendant challenges the constitutionality of a statute which
authorizing the search, the burden shifted to the defendant as statutes authorizing the search, the burden shifted to the defendant as statutes
are presumed constitutional. Id. at 767-768. are presumed constitutional. Id. at 767-768.
Pretrial Pretrial
If the defendant testifies at the hearing, he does not waive his right to If the defendant testifies at the hearing, he does not waive his right to
remain silent at trial. Pa.R.Crim.P. 581(H). remain silent at trial. Pa.R.Crim.P. 581(H).
At the conclusion of the hearing, the Judge must enter on the record a At the conclusion of the hearing, the Judge must enter on the record a
statement of findings of fact and conclusions of law as to whether the evidence statement of findings of fact and conclusions of law as to whether the evidence
was obtained in violation of the defendants rights. Pa.R.Crim.P. 581(I). was obtained in violation of the defendants rights. Pa.R.Crim.P. 581(I).
If the court determines that the evidence should not be suppressed, the If the court determines that the evidence should not be suppressed, the
ruling is final and binding at trial, except upon a showing of evidence which was ruling is final and binding at trial, except upon a showing of evidence which was
previously unavailable. Pa.R.Crim.P. 581(J). The defendant may always challenge previously unavailable. Pa.R.Crim.P. 581(J). The defendant may always challenge
the voluntariness of a confession before a fact-finder. Pa.R.Crim.P. 581, comment; the voluntariness of a confession before a fact-finder. Pa.R.Crim.P. 581, comment;
See Commonwealth v. Cameron, 780 A.2d 688, 693 (Pa. Super. 2001). See Commonwealth v. Cameron, 780 A.2d 688, 693 (Pa. Super. 2001).
(a) Lustful Disposition Exception (a) Lustful Disposition Exception
The lustful disposition exception to the general rule against The lustful disposition exception to the general rule against
the admission of evidence of prior or subsequent bad acts15 has been the admission of evidence of prior or subsequent bad acts15 has been
consistently recognized by the Pennsylvania Supreme Court for more consistently recognized by the Pennsylvania Supreme Court for more
than a century. Commonwealth v. Wattley, 880 A.2d 682, 686 (Pa. Super. than a century. Commonwealth v. Wattley, 880 A.2d 682, 686 (Pa. Super.
2005), appeal dismissed, 592 Pa. 304, 924 A.2d 1203 (2007). This exception 2005), appeal dismissed, 592 Pa. 304, 924 A.2d 1203 (2007). This exception
permits evidence of prior sexual relations between the defendant and the permits evidence of prior sexual relations between the defendant and the
victim: victim:
In general, evidence of other wrongful conduct In general, evidence of other wrongful conduct
not charged in the information on which the defendant not charged in the information on which the defendant
is being tried is inadmissible at trial except in certain is being tried is inadmissible at trial except in certain
limited circumstances. One such exception arises in limited circumstances. One such exception arises in
the prosecution of sexual offenses. Evidence of prior the prosecution of sexual offenses. Evidence of prior
sexual relations between defendant and his or her sexual relations between defendant and his or her
victim is admissible to show a passion or propensity for victim is admissible to show a passion or propensity for
illicit sexual relations with the victim. This exception illicit sexual relations with the victim. This exception
is limited, however. The evidence is admissible only is limited, however. The evidence is admissible only
when the prior act involves the same victim and the two when the prior act involves the same victim and the two
acts are sufficiently connected to suggest a continuing acts are sufficiently connected to suggest a continuing
course of conduct. The admissibility of the evidence is course of conduct. The admissibility of the evidence is
not affected by the fact that the prior incidents occurred not affected by the fact that the prior incidents occurred
outside of the statute of limitations. outside of the statute of limitations.
Commonwealth v. Knowles, 637 A.2d 331, 333 (Pa. Super. 1994) Commonwealth v. Knowles, 637 A.2d 331, 333 (Pa. Super. 1994)
(emphasis added). (emphasis added).
15 Rule which prohibits prior or subsequent bad acts Pa R.E. 404(B). 15 Rule which prohibits prior or subsequent bad acts Pa R.E. 404(B).
Pretrial Pretrial
There are a long line of cases which acknowledge this exception: There are a long line of cases which acknowledge this exception:
Commonwealth v. Bell, 166 Pa. 405, 411-412, 31 A. Commonwealth v. Bell, 166 Pa. 405, 411-412, 31 A.
123 (1895): evidence of prior or subsequent sexual acts 123 (1895): evidence of prior or subsequent sexual acts
between the defendant and alleged victim admissible; between the defendant and alleged victim admissible;
Commonwealth v. Snyder, 80 A.2d 336, 343-344 (Pa. Commonwealth v. Snyder, 80 A.2d 336, 343-344 (Pa.
Super. 2005): permitted admission of sexually explicit Super. 2005): permitted admission of sexually explicit
photograph of minor victim to show a passion or photograph of minor victim to show a passion or
propensity for illicit sexual misconduct toward the victim; propensity for illicit sexual misconduct toward the victim;
Commonwealth v. Dunkle, 529 Pa. 168, 186, 602 A. Commonwealth v. Dunkle, 529 Pa. 168, 186, 602 A.
830, 839 (1992): evidence admissible to show a passion 830, 839 (1992): evidence admissible to show a passion
or propensity for illicit sexual relations of the defendant or propensity for illicit sexual relations of the defendant
toward the alleged victim. toward the alleged victim.
The Superior Court in Commonwealth v. Wattley cited to The Superior Court in Commonwealth v. Wattley cited to
Commonwealth v. Collins, 550 Pa. 46, 56, 703, A.2d 418, 423 (1997), Commonwealth v. Collins, 550 Pa. 46, 56, 703, A.2d 418, 423 (1997),
cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d 447 (1998), for the cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d 447 (1998), for the
authority that subsequent offenses are relevant just as prior conduct: authority that subsequent offenses are relevant just as prior conduct:
Although evidence of a subsequent offense is usually Although evidence of a subsequent offense is usually
less probative of intent than evidence of a prior offense, less probative of intent than evidence of a prior offense,
evidence of a subsequent offense can still show the evidence of a subsequent offense can still show the
defendants intent at the time of the prior offense. defendants intent at the time of the prior offense.
(b) Federal Rules of Evidence (b) Federal Rules of Evidence
Interestingly, the Pennsylvania Supreme Court adopted, in 1998, Interestingly, the Pennsylvania Supreme Court adopted, in 1998,
the Rules of Evidence, and chose not to incorporate the lustful disposition the Rules of Evidence, and chose not to incorporate the lustful disposition
exception as specified in the federal rules: exception as specified in the federal rules:
Federal Rules of Evidence Federal Rules of Evidence
Rule 413. Similar Crimes in Sexual-Assault Cases Rule 413. Similar Crimes in Sexual-Assault Cases
(a) Permitted Uses. In a criminal case in which a (a) Permitted Uses. In a criminal case in which a
defendant is accused of a sexual assault, the court defendant is accused of a sexual assault, the court
may admit evidence that the defendant committed may admit evidence that the defendant committed
any other sexual assault. The evidence may be any other sexual assault. The evidence may be
considered on any matter to which it is relevant. considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor (b) Disclosure to the Defendant. If the prosecutor
intends to offer this evidence, the prosecutor must intends to offer this evidence, the prosecutor must
disclose it to the defendant, including witnesses disclose it to the defendant, including witnesses
Pretrial Pretrial
statements or a summary of the expected testimony. statements or a summary of the expected testimony.
The prosecutor must do so at least 15 days before The prosecutor must do so at least 15 days before
trial or at a later time that the court allows for good trial or at a later time that the court allows for good
cause. cause.
(c) Effect on Other Rules. This rule does not limit (c) Effect on Other Rules. This rule does not limit
the admission or consideration of evidence under the admission or consideration of evidence under
any other rule. any other rule.
(d) Definition of Sexual Assault. In this rule and (d) Definition of Sexual Assault. In this rule and
Rule 415, sexual assault means a crime under Rule 415, sexual assault means a crime under
federal law or under state law (as state is defined federal law or under state law (as state is defined
in 18 U.S.C. 513) involving: in 18 U.S.C. 513) involving:
(1) any conduct prohibited by 18 U.S.C. chapter (1) any conduct prohibited by 18 U.S.C. chapter
109A; 109A;
(2) contact, without consent, between any part of (2) contact, without consent, between any part of
the defendants body--or an object--and another the defendants body--or an object--and another
persons genitals or anus; persons genitals or anus;
(3) contact, without consent, between the (3) contact, without consent, between the
defendants genitals or anus and any part of defendants genitals or anus and any part of
another persons body; another persons body;
(4) deriving sexual pleasure or gratification from (4) deriving sexual pleasure or gratification from
inflicting death, bodily injury, or physical pain on inflicting death, bodily injury, or physical pain on
another person; or another person; or
(5) an attempt or conspiracy to engage in conduct (5) an attempt or conspiracy to engage in conduct
described in subparagraphs (1)-(4). described in subparagraphs (1)-(4).
Rule 414. Similar Crimes in Child-Molestation Rule 414. Similar Crimes in Child-Molestation
Cases Cases
(a) Permitted Uses. In a criminal case in which a (a) Permitted Uses. In a criminal case in which a
defendant is accused of child molestation, the court defendant is accused of child molestation, the court
may admit evidence that the defendant committed may admit evidence that the defendant committed
any other child molestation. The evidence may be any other child molestation. The evidence may be
considered on any matter to which it is relevant. considered on any matter to which it is relevant.
(b) Disclosure to the Defendant. If the prosecutor (b) Disclosure to the Defendant. If the prosecutor
intends to offer this evidence, the prosecutor must intends to offer this evidence, the prosecutor must
disclose it to the defendant, including witnesses disclose it to the defendant, including witnesses
statements or a summary of the expected testimony. statements or a summary of the expected testimony.
The prosecutor must do so at least 15 days before The prosecutor must do so at least 15 days before
Pretrial Pretrial
trial or at a later time that the court allows for good trial or at a later time that the court allows for good
cause. cause.
(c) Effect on Other Rules. This rule does not limit (c) Effect on Other Rules. This rule does not limit
the admission or consideration of evidence under the admission or consideration of evidence under
any other rule. any other rule.
(d) Definition of Child and Child Molestation. (d) Definition of Child and Child Molestation.
In this rule and Rule 415: In this rule and Rule 415:
(1) child means a person below the age of 14; and (1) child means a person below the age of 14; and
(2) child molestation means a crime under federal (2) child molestation means a crime under federal
law or under state law (as state is defined in 18 law or under state law (as state is defined in 18
U.S.C. 513) involving: U.S.C. 513) involving:
(A) any conduct prohibited by 18 U.S.C. chapter (A) any conduct prohibited by 18 U.S.C. chapter
109A and committed with a child; 109A and committed with a child;
(B) any conduct prohibited by 18 U.S.C. chapter (B) any conduct prohibited by 18 U.S.C. chapter
110; 110;
(C) contact between any part of the defendants (C) contact between any part of the defendants
body--or an object--and a childs genitals or anus; body--or an object--and a childs genitals or anus;
(D) contact between the defendants genitals or (D) contact between the defendants genitals or
anus and any part of a childs body; anus and any part of a childs body;
(E) deriving sexual pleasure or gratification from (E) deriving sexual pleasure or gratification from
inflicting death, bodily injury, or physical pain on a inflicting death, bodily injury, or physical pain on a
child; or child; or
(F) an attempt or conspiracy to engage in conduct (F) an attempt or conspiracy to engage in conduct
described in subparagraphs (A)-(E). described in subparagraphs (A)-(E).
4. Psychiatric Examination 4. Psychiatric Examination
for a psychiatric examination. Pa.R.Crim.P. 578, comment. At least one Common for a psychiatric examination. Pa.R.Crim.P. 578, comment. At least one Common
Pleas Court has held that a victim of a crime of sexual violence may be compelled Pleas Court has held that a victim of a crime of sexual violence may be compelled
to undergo a psychiatric evaluation pursuant to this rule if the defendant can to undergo a psychiatric evaluation pursuant to this rule if the defendant can
establish the necessity for the examination. Commonwealth v. Ramer, 30 Pa. establish the necessity for the examination. Commonwealth v. Ramer, 30 Pa.
D.&C.3d 50, 1983 WL 134 (1984). However, impugning the credibility of such D.&C.3d 50, 1983 WL 134 (1984). However, impugning the credibility of such
a victim or attacking the competency and truthfulness of the victim are not a victim or attacking the competency and truthfulness of the victim are not
compelling enough reasons to justify such an examination. Id. compelling enough reasons to justify such an examination. Id.
Pretrial Pretrial
5. Quashal of Information 5. Quashal of Information
for quashing an information. Pa.R.Crim.P. 578, comment. In fact, all grounds for for quashing an information. Pa.R.Crim.P. 578, comment. In fact, all grounds for
claiming that indictments or informations are defective must be stated in a pre- claiming that indictments or informations are defective must be stated in a pre-
trial motion to quash, and if they are not, they are waived. Commonwealth v. trial motion to quash, and if they are not, they are waived. Commonwealth v.
Gemelli, 474 A.2d 294, 299 (Pa. Super. 1984). Gemelli, 474 A.2d 294, 299 (Pa. Super. 1984).
Commonwealth v. Parmar, 672 A.2d 314 (Pa. Super. 1996), affd, 551 Commonwealth v. Parmar, 672 A.2d 314 (Pa. Super. 1996), affd, 551
Pa. 318, 710 A.2d 1083 (1998) (claim that information or indictment Pa. 318, 710 A.2d 1083 (1998) (claim that information or indictment
charged defendant with wrong crime was waived for failure to include charged defendant with wrong crime was waived for failure to include
it in written pre-trial motion to quash) it in written pre-trial motion to quash)
Commonwealth v. Finley, 860 A.2d 132, 135 (Pa. Super. 2004) Commonwealth v. Finley, 860 A.2d 132, 135 (Pa. Super. 2004)
(quashal was not an appropriate remedy for illegal arrest) (quashal was not an appropriate remedy for illegal arrest)
6. Change of Venue or Venire 6. Change of Venue or Venire
for a change of venue or venire. Pa.R.Crim.P. 578, comment. The standard to be for a change of venue or venire. Pa.R.Crim.P. 578, comment. The standard to be
followed by the trial court is stated in Pa.R.Crim.P. 584: Venue or venire may followed by the trial court is stated in Pa.R.Crim.P. 584: Venue or venire may
be changed by ... (the trial court) when it is determined after hearing that a fair be changed by ... (the trial court) when it is determined after hearing that a fair
and impartial trial cannot be otherwise be had in the county where the case is and impartial trial cannot be otherwise be had in the county where the case is
currently pending. Pa.R.Crim.P. 584(A). currently pending. Pa.R.Crim.P. 584(A).
If the trial court determines that a change of venue or venire is necessary, If the trial court determines that a change of venue or venire is necessary,
then the order for the change must be certified forthwith to the Supreme Court; then the order for the change must be certified forthwith to the Supreme Court;
the Supreme Court will then designate the county of transfer, or the county from the Supreme Court will then designate the county of transfer, or the county from
which the jury is to be impaneled. Pa.R.Crim.P. 584(B). which the jury is to be impaneled. Pa.R.Crim.P. 584(B).
7. Disqualification of Judge 7. Disqualification of Judge
for the disqualification of a judge. Pa.R.Crim.P. 578 comment. Any motion to for the disqualification of a judge. Pa.R.Crim.P. 578 comment. Any motion to
disqualify or remove a trial judge should be first presented to the trial judge disqualify or remove a trial judge should be first presented to the trial judge
before whom the proceedings are being tried. This way, the trial judge makes before whom the proceedings are being tried. This way, the trial judge makes
the determination in the first instance, which can be reviewed for an abuse of the determination in the first instance, which can be reviewed for an abuse of
discretion by the appropriate appellate court. Commonwealth v. Whitmore, discretion by the appropriate appellate court. Commonwealth v. Whitmore,
590 Pa. 376, 386, 912 A.2d 827, 833 (2006). 590 Pa. 376, 386, 912 A.2d 827, 833 (2006).
An appellate court should presume that judges are fair and competent, An appellate court should presume that judges are fair and competent,
and should review the denial of a recusal motion for an abuse of discretion. In and should review the denial of a recusal motion for an abuse of discretion. In
re Lokuta, 608 Pa. 223, 238, 11 A.3d 427, 435 (2011), cert. denied, 132 S.Ct. 242, re Lokuta, 608 Pa. 223, 238, 11 A.3d 427, 435 (2011), cert. denied, 132 S.Ct. 242,
181 L.Ed.2d 138 (2011). 181 L.Ed.2d 138 (2011).
Pretrial Pretrial
8. Appointment of an Investigator 8. Appointment of an Investigator
for the appointment of an investigator. Pa.R.Crim.P. 578, comment. for the appointment of an investigator. Pa.R.Crim.P. 578, comment.
9. Pre-trial Conference 9. Pre-trial Conference
for a pre-trial conference. Pa.R.Crim.P. 578, comment. for a pre-trial conference. Pa.R.Crim.P. 578, comment.
10. Double Jeopardy 10. Double Jeopardy
The issue of double jeopardy should usually be raised in pre-trial motions. The issue of double jeopardy should usually be raised in pre-trial motions.
Commonwealth v. Johnson, 466 A.2d 636 (Pa. Super. 1983). Numerous cases Commonwealth v. Johnson, 466 A.2d 636 (Pa. Super. 1983). Numerous cases
have held that the failure to file a pre-trial motion to dismiss which raises have held that the failure to file a pre-trial motion to dismiss which raises
double jeopardy will result in a waiver of this argument. Commonwealth v. double jeopardy will result in a waiver of this argument. Commonwealth v.
Higginbottom, 678 A.2d 408, 411 (Pa. Super. 1996). Higginbottom, 678 A.2d 408, 411 (Pa. Super. 1996).
11. Statute of Limitations 11. Statute of Limitations
The issue of statute of limitations should be raised in a pre-trial motion to The issue of statute of limitations should be raised in a pre-trial motion to
dismiss. Commonwealth v. Corban Corp., 909 A.2d 406, 411 (Pa. Super. 2006), dismiss. Commonwealth v. Corban Corp., 909 A.2d 406, 411 (Pa. Super. 2006),
affd, 598 Pa. 459, 957 A.2d 274 (2008); Commonwealth v. Groff, 548 A.2d 1237, affd, 598 Pa. 459, 957 A.2d 274 (2008); Commonwealth v. Groff, 548 A.2d 1237,
1244 (Pa. Super. 1988). 1244 (Pa. Super. 1988).
12. Writ of Habeas Corpus 12. Writ of Habeas Corpus
A petition for writ of habeas corpus is the proper pre-trial vehicle for A petition for writ of habeas corpus is the proper pre-trial vehicle for
testing the sufficiency of the Commonwealths evidence. Commonwealth v. testing the sufficiency of the Commonwealths evidence. Commonwealth v.
Hock, 556 Pa. 409, 413-414 728 A.2d 943, 945 (1999). To survive such a petition, Hock, 556 Pa. 409, 413-414 728 A.2d 943, 945 (1999). To survive such a petition,
the Commonwealths evidence need only be that measure of evidence, which, the Commonwealths evidence need only be that measure of evidence, which,
if accepted as true, would justify the conclusion that the defendant is guilty of if accepted as true, would justify the conclusion that the defendant is guilty of
the offense charged, i.e., a prima facie case. Commonwealth v. Kohlie, 811 A.2d the offense charged, i.e., a prima facie case. Commonwealth v. Kohlie, 811 A.2d
B. Time for Filing B. Time for Filing
The omnibus pre-trial motion must be filed and served within 30 days after The omnibus pre-trial motion must be filed and served within 30 days after
arraignment. Pa.R.Crim.P. 579(A). The defendant may only evade this requirement arraignment. Pa.R.Crim.P. 579(A). The defendant may only evade this requirement
by establishing (1) that the opportunity to file the motion did not previously exist; (2) by establishing (1) that the opportunity to file the motion did not previously exist; (2)
that the defendant, defendants attorney, or the Commonwealth was not aware of the that the defendant, defendants attorney, or the Commonwealth was not aware of the
grounds for the motion; (3) that the time for filing the motion was extended by court grounds for the motion; (3) that the time for filing the motion was extended by court
order for cause shown. Id. order for cause shown. Id.
Pretrial Pretrial
If the trial court grants an extension to the defense to file an omnibus pre-trial If the trial court grants an extension to the defense to file an omnibus pre-trial
motion beyond the 30 day period, no error is committed unless the Commonwealth can motion beyond the 30 day period, no error is committed unless the Commonwealth can
show prejudice. Commonwealth v. Baez, 21 A.3d 1280, 1282, (Pa. Super. 2011), appeal show prejudice. Commonwealth v. Baez, 21 A.3d 1280, 1282, (Pa. Super. 2011), appeal
C. Disposition of Motion C. Disposition of Motion
The Rules of Criminal Procedure provide that [u]nless otherwise provided in The Rules of Criminal Procedure provide that [u]nless otherwise provided in
these rules, all pretrial motions shall be determined before trial. Trial shall be postponed these rules, all pretrial motions shall be determined before trial. Trial shall be postponed
by the court for the determination of pretrial motions, if necessary. Pa.R.Crim.P. 580. by the court for the determination of pretrial motions, if necessary. Pa.R.Crim.P. 580.
1. Appellate Review 1. Appellate Review
Generally, pre-trial orders in criminal cases are not immediately appealable. Generally, pre-trial orders in criminal cases are not immediately appealable.
Commonwealth v. Wills, 476 A.2d 1362, 1363 (Pa. Super. 1984). However, the Commonwealth v. Wills, 476 A.2d 1362, 1363 (Pa. Super. 1984). However, the
appellate rules permit interlocutory appeals in a number of situations. appellate rules permit interlocutory appeals in a number of situations.
Pursuant to Pa.R.A.P. 311 (a)(3), an order which changes venue or venire Pursuant to Pa.R.A.P. 311 (a)(3), an order which changes venue or venire
in a criminal proceeding is immediately appealable. in a criminal proceeding is immediately appealable.
Pursuant to Pa.R.A.P. 311 (a)(8), an order which is made appealable by Pursuant to Pa.R.A.P. 311 (a)(8), an order which is made appealable by
statute or general rule is also immediately appealable. The denial of a defendants statute or general rule is also immediately appealable. The denial of a defendants
motion to quash on double jeopardy grounds is immediately appealable. motion to quash on double jeopardy grounds is immediately appealable.
Commonwealth v. Buechele, 444 A.2d 1246 (Pa. Super. 1982). Furthermore, Commonwealth v. Buechele, 444 A.2d 1246 (Pa. Super. 1982). Furthermore,
42 Pa. Cons. Stat. Ann. 702 permits appeals from interlocutory orders as 42 Pa. Cons. Stat. Ann. 702 permits appeals from interlocutory orders as
authorized by law. authorized by law.
Pursuant to Pa.R.A.P. 311 (d), the Commonwealth may take an appeal Pursuant to Pa.R.A.P. 311 (d), the Commonwealth may take an appeal
as of right from an order which does not end the entire case but where the as of right from an order which does not end the entire case but where the
Commonwealth certifies that the order will terminate or substantially handicap Commonwealth certifies that the order will terminate or substantially handicap
the prosecution, such as in the grant of a suppression motion. the prosecution, such as in the grant of a suppression motion.
42 Pa. Cons. Stat. Ann. 702(b) authorizes interlocutory appeals by 42 Pa. Cons. Stat. Ann. 702(b) authorizes interlocutory appeals by
permission. Pa.R.A.P. 1311 specifies the petition and procedure to pursue an permission. Pa.R.A.P. 1311 specifies the petition and procedure to pursue an
interlocutory appeal by permission. interlocutory appeal by permission.
6.8 EVIDENCE OF VICTIMS PAST SEXUAL CONDUCT 6.8 EVIDENCE OF VICTIMS PAST SEXUAL CONDUCT
A. Pennsylvanias Rape Shield Law16 A. Pennsylvanias Rape Shield Law16
1. Prohibited Evidence 1. Prohibited Evidence

Pennsylvanias Rape Shield Law is statutory in nature, and not a rule of Pennsylvanias Rape Shield Law is statutory in nature, and not a rule of
16 For additional discussion of Pennsylvanias Rape Shield Statute, please see Chapter 5, Section 5.5, Impeachment with Prior Sexual 16 For additional discussion of Pennsylvanias Rape Shield Statute, please see Chapter 5, Section 5.5, Impeachment with Prior Sexual
Conduct Conduct
Pretrial Pretrial
evidence as it is under the Federal system. Pennsylvanias Rape Shield Law states evidence as it is under the Federal system. Pennsylvanias Rape Shield Law states
as the general rule that as the general rule that
(a) General rule.--Evidence of specific instances of the (a) General rule.--Evidence of specific instances of the
evidence of the alleged victims past sexual conduct evidence of the alleged victims past sexual conduct
shall not be admissible in prosecutions under this shall not be admissible in prosecutions under this
chapter except evidence of the alleged victims past chapter except evidence of the alleged victims past
sexual conduct with the defendant where consent of the sexual conduct with the defendant where consent of the
alleged victim is at issue and such evidence is otherwise alleged victim is at issue and such evidence is otherwise
2. Procedure 2. Procedure
Furthermore, the Rape Shield Law specifies that a specific procedure Furthermore, the Rape Shield Law specifies that a specific procedure
must be followed to present evidence that would fall under an exception to this must be followed to present evidence that would fall under an exception to this
statute: statute:
(b) Evidentiary proceedings.--A defendant who proposes (b) Evidentiary proceedings.--A defendant who proposes
to offer evidence of the alleged victims past sexual conduct to offer evidence of the alleged victims past sexual conduct
pursuant to subsection (a) shall file a written motion and pursuant to subsection (a) shall file a written motion and
offer of proof at the time of trial. If, at the time of trial, the offer of proof at the time of trial. If, at the time of trial, the
court determines that the motion and offer of proof are court determines that the motion and offer of proof are
sufficient on their faces, the court shall order an in camera sufficient on their faces, the court shall order an in camera
hearing and shall make findings on the record as to the hearing and shall make findings on the record as to the
relevance and admissibility of the proposed evidence relevance and admissibility of the proposed evidence
pursuant to the standards set forth in subsection (a). pursuant to the standards set forth in subsection (a).
B. Purpose of Rape Shield Statute B. Purpose of Rape Shield Statute
The purpose of this provision is to prevent a trial from shifting focus to the The purpose of this provision is to prevent a trial from shifting focus to the
defendants culpability for the charged crime to the virtue and chastity of the victim. defendants culpability for the charged crime to the virtue and chastity of the victim.
Commonwealth v. Fernsler, 715 A.2d 435 (Pa. Super. 1998). The rape shield laws, as Commonwealth v. Fernsler, 715 A.2d 435 (Pa. Super. 1998). The rape shield laws, as
enacted by the various states, were intended to end the abuses fostered by the common enacted by the various states, were intended to end the abuses fostered by the common
law rule by limiting the harassing and embarrassing inquiries of defense counsel into law rule by limiting the harassing and embarrassing inquiries of defense counsel into
irrelevant prior sexual conduct of sexual assault complainants. Commonwealth v. irrelevant prior sexual conduct of sexual assault complainants. Commonwealth v.
Burns, 988 A.2d 684, 691 (Pa. Super. 2009), appeal denied, 608 Pa. 615, 8 A.3d 341 Burns, 988 A.2d 684, 691 (Pa. Super. 2009), appeal denied, 608 Pa. 615, 8 A.3d 341
(2010). (2010).
Pretrial Pretrial
Examples Examples
In re M.K., 636 A.2d 198 (Pa. Super. 1994), appeal denied, 537 Pa. 633, 642 In re M.K., 636 A.2d 198 (Pa. Super. 1994), appeal denied, 537 Pa. 633, 642
A.2d 486 (1994), cert. denied, 513 U.S. 962, 115 S.Ct. 423, 130 L.Ed.2d 338 A.2d 486 (1994), cert. denied, 513 U.S. 962, 115 S.Ct. 423, 130 L.Ed.2d 338
(1994). (1994).
Rape Shield Law applies only to prosecutions relating to sexual offenses. Rape Shield Law applies only to prosecutions relating to sexual offenses.
Commonwealth v. Killen, 545 Pa. 127, 133, 680 A.2d 851, 854 (1996) Commonwealth v. Killen, 545 Pa. 127, 133, 680 A.2d 851, 854 (1996)
Evidence that victim made provocative statements and was in a jovial Evidence that victim made provocative statements and was in a jovial
mood shortly after alleged assault was not evidence of victims sexual mood shortly after alleged assault was not evidence of victims sexual
history and therefore was not subject to Rape Shield Law. history and therefore was not subject to Rape Shield Law.
Commonwealth v. Dear, 492 A.2d 714 (Pa. Super. 1985) Commonwealth v. Dear, 492 A.2d 714 (Pa. Super. 1985)
Evidence of victims prior convictions for prostitution was not admissible Evidence of victims prior convictions for prostitution was not admissible
to show that victim consented to having sexual intercourse with the to show that victim consented to having sexual intercourse with the
Past sexual conduct of the victim includes the victims entire sexual history. Past sexual conduct of the victim includes the victims entire sexual history.
Commonwealth v. Jones, 826 A.2d 900 (Pa. Super. 2003). Therefore, the Rape Shield Commonwealth v. Jones, 826 A.2d 900 (Pa. Super. 2003). Therefore, the Rape Shield
Law excludes all past consensual sexual conduct or sexual conduct unless there exists Law excludes all past consensual sexual conduct or sexual conduct unless there exists
probative value that is exculpatory to the Defendant. Commonwealth v. Gaddis, 639 probative value that is exculpatory to the Defendant. Commonwealth v. Gaddis, 639
Examples Examples
Commonwealth v. Jones, 826 A.2d 900, 908 (Pa. Super. 2003) Commonwealth v. Jones, 826 A.2d 900, 908 (Pa. Super. 2003)
Evidence that victim had been convicted of prostitution for acts with a third Evidence that victim had been convicted of prostitution for acts with a third
party that occurred after defendants arrest was inadmissible evidence party that occurred after defendants arrest was inadmissible evidence
of victims past sexual conduct when the evidence did not exculpate of victims past sexual conduct when the evidence did not exculpate
defendant and was not probative of victims willingness to commit sexual defendant and was not probative of victims willingness to commit sexual
acts with defendant. acts with defendant.
Commonwealth v. Fink, 791 A.2d 1235, 1242-1243 (Pa. Super. 2002) Commonwealth v. Fink, 791 A.2d 1235, 1242-1243 (Pa. Super. 2002)
If victims prior sexual conduct does not involve defendant or involves If victims prior sexual conduct does not involve defendant or involves
defendant but consent is not an issue in the case, then the victims prior defendant but consent is not an issue in the case, then the victims prior
sexual conduct must be relevant to show bias against the defendant or to sexual conduct must be relevant to show bias against the defendant or to
attack the credibility of the victim in order to be admissible. attack the credibility of the victim in order to be admissible.
Commonwealth v. Guy, 686 A.2d 397, 401 (Pa. Super. 1996), appeal Commonwealth v. Guy, 686 A.2d 397, 401 (Pa. Super. 1996), appeal
Pretrial Pretrial
Evidence of victims sexual history not admissible to prove that victim Evidence of victims sexual history not admissible to prove that victim
acted in conformity with past behavior. acted in conformity with past behavior.
C. Motive, Prejudice or Bias Admissibility C. Motive, Prejudice or Bias Admissibility
Evidence otherwise excluded by the Rape Shield Law may, at times, be admissible Evidence otherwise excluded by the Rape Shield Law may, at times, be admissible
subject to one or more exceptions. Commonwealth v. Miner, 44 A.3d 684, 687-688 (Pa. subject to one or more exceptions. Commonwealth v. Miner, 44 A.3d 684, 687-688 (Pa.
Super. 2012). Super. 2012).
Evidence relating to an alleged victims sexual history is admissible under the Evidence relating to an alleged victims sexual history is admissible under the
Rape Shield Law if it tends to directly exculpate the defendant by showing, inter alia, Rape Shield Law if it tends to directly exculpate the defendant by showing, inter alia,
bias, hostility, motive to lie or fabricate; evidence of a sexual encounter with another bias, hostility, motive to lie or fabricate; evidence of a sexual encounter with another
person on the date in question; or impeachment value through demonstrating a prior person on the date in question; or impeachment value through demonstrating a prior
inconsistent statement. Commonwealth v. Guy, 686 A.2d 397 (Pa. Super. 1996), appeal inconsistent statement. Commonwealth v. Guy, 686 A.2d 397 (Pa. Super. 1996), appeal
denied, 548 Pa. 645, 695 A.2d 784 (1997). The Pennsylvania Supreme Court recently denied, 548 Pa. 645, 695 A.2d 784 (1997). The Pennsylvania Supreme Court recently
reaffirmed this exception to the Rape Shield Law: reaffirmed this exception to the Rape Shield Law:
Because the evidence of [the alleged victims] prior juvenile Because the evidence of [the alleged victims] prior juvenile
adjudication could be used to show bias or motive, an exception adjudication could be used to show bias or motive, an exception
to the Rape Shield Law, the trial court is to determine the to the Rape Shield Law, the trial court is to determine the
admissibility of this evidence at an in camera hearing consistent admissibility of this evidence at an in camera hearing consistent
with the procedures and balancing test first outlined in with the procedures and balancing test first outlined in
Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396
(1985). See also Commonwealth v. Fink, 791 A.2d 1235, 1241- (1985). See also Commonwealth v. Fink, 791 A.2d 1235, 1241-
42 (Pa.Super.200). 42 (Pa.Super.200).
Commonwealth v. Ruggiano, 611 Pa. 368, 26 A.3d 473, 473-474 (2011) (Per Curiam Commonwealth v. Ruggiano, 611 Pa. 368, 26 A.3d 473, 473-474 (2011) (Per Curiam
Order). Order).
Upon a specific proffer, the trial court must balance the probative value of the Upon a specific proffer, the trial court must balance the probative value of the
evidence to see it is outweighed by its unfair prejudicial effect. Commonwealth v. Eck, evidence to see it is outweighed by its unfair prejudicial effect. Commonwealth v. Eck,
1. Necessity of specific proffer 1. Necessity of specific proffer
If a defendant wishes to present evidence, either extrinsically or through If a defendant wishes to present evidence, either extrinsically or through
cross-examination, of a victims sexual history, the defendant must present a cross-examination, of a victims sexual history, the defendant must present a
specific proffer to the court: specific proffer to the court:
In Pennsylvania, we have come to resolve this question through a In Pennsylvania, we have come to resolve this question through a
relatively elaborate procedure which is designed to ensure that no relatively elaborate procedure which is designed to ensure that no
evidence of the victims sexual history is introduced unless and until evidence of the victims sexual history is introduced unless and until
it can be established that to exclude such evidence would lay victim to it can be established that to exclude such evidence would lay victim to
the very raison detre of the trial itself: the pursuit of truth. The process the very raison detre of the trial itself: the pursuit of truth. The process
begins with the defendant submitting a specific proffer to the court of begins with the defendant submitting a specific proffer to the court of
Pretrial Pretrial
exactly what evidence he or she seeks to admit and precisely why it is exactly what evidence he or she seeks to admit and precisely why it is
relevant to the defense. This procedure forces the defendant to frame relevant to the defense. This procedure forces the defendant to frame
the precise issues and interests involved, and prevents him or her from the precise issues and interests involved, and prevents him or her from
embarking upon fishing expedition style intrusions on Rape Shield Law embarking upon fishing expedition style intrusions on Rape Shield Law
protections. Where the proffer is but vague and conjectural, evidence of protections. Where the proffer is but vague and conjectural, evidence of
the victims past sexual conduct will be excluded and no further inquiry the victims past sexual conduct will be excluded and no further inquiry
need be entertained. need be entertained.
Commonwealth v. Kunkle, 623 A.2d 336, 339 (Pa. Super. 1993), appeal Commonwealth v. Kunkle, 623 A.2d 336, 339 (Pa. Super. 1993), appeal
denied, 536 Pa. 621, 637 A.2d 281 (1993)(quoting Commonwealth v. Wall, 606 denied, 536 Pa. 621, 637 A.2d 281 (1993)(quoting Commonwealth v. Wall, 606
A.2d 449, 457 (Pa. Super. 1992), appeal denied, 532 Pa. 645, 614 A.2d 1142 (1992) A.2d 449, 457 (Pa. Super. 1992), appeal denied, 532 Pa. 645, 614 A.2d 1142 (1992)
(citations omitted)). The significance of the required offer of proof has been (citations omitted)). The significance of the required offer of proof has been
demonstrated in a long line of decisions. See, e.g., Commonwealth v. Nieves, 582 demonstrated in a long line of decisions. See, e.g., Commonwealth v. Nieves, 582
The requirement of a specific proffer of evidence was designed to prevent The requirement of a specific proffer of evidence was designed to prevent
a fishing expedition into the areas protected by the statutes. Commonwealth a fishing expedition into the areas protected by the statutes. Commonwealth
v. Burns, 988 A.2d 684, 691 (Pa. Super. 2009), appeal denied, 608 Pa. 615, 8 A.3d v. Burns, 988 A.2d 684, 691 (Pa. Super. 2009), appeal denied, 608 Pa. 615, 8 A.3d
341 (2010). 341 (2010).
2. In Camera hearing 2. In Camera hearing
If the court determines that the evidence of the victims prior sexual If the court determines that the evidence of the victims prior sexual
history has some probative exculpatory value for the defendant, the court history has some probative exculpatory value for the defendant, the court
should conduct an in camera hearing to weigh the probative value against the should conduct an in camera hearing to weigh the probative value against the
prejudicial effect. Commonwealth v. Eck, 605 A.2d 1248, 1255 (Pa. Super. 1992); prejudicial effect. Commonwealth v. Eck, 605 A.2d 1248, 1255 (Pa. Super. 1992);
Commonwealth v. Johnson, 566 A.2d 1197, 1202 (Pa. Super. 1989)(en banc), Commonwealth v. Johnson, 566 A.2d 1197, 1202 (Pa. Super. 1989)(en banc),
affd, 536 Pa. 153, 638 A.2d 940 (1994). The proponent of evidence concerning affd, 536 Pa. 153, 638 A.2d 940 (1994). The proponent of evidence concerning
the victims sexual history bears the burden of establishing the admissibility and the victims sexual history bears the burden of establishing the admissibility and
relevance of the evidence under the Rape Shield Law. Commonwealth v. Weber, relevance of the evidence under the Rape Shield Law. Commonwealth v. Weber,
549 Pa. 430, 438-439 701 A.2d 531 (1997). 549 Pa. 430, 438-439 701 A.2d 531 (1997).
3. Examples 3. Examples
Commonwealth v. Jones, 826 A.2d 900, 908 (Pa. Super. 2003) Commonwealth v. Jones, 826 A.2d 900, 908 (Pa. Super. 2003)
Evidence of victims prostitution conviction for acts with a third party Evidence of victims prostitution conviction for acts with a third party
occurring after defendants arrest was inadmissible under Rape Shield occurring after defendants arrest was inadmissible under Rape Shield
Law. Law.
Commonwealth v. Fernsler, 715 A.2d 435, 440 (Pa. Super. 1998) Commonwealth v. Fernsler, 715 A.2d 435, 440 (Pa. Super. 1998)
Evidence concerning juvenile victims placement in treatment program Evidence concerning juvenile victims placement in treatment program
for sexual assault on half-sister was admissible as it reflected a possible for sexual assault on half-sister was admissible as it reflected a possible
motive for victim to seek favorable treatment by fabricating charges motive for victim to seek favorable treatment by fabricating charges
Pretrial Pretrial
against defendant, victims father. against defendant, victims father.
Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161, 1165 (1994) Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161, 1165 (1994)
Evidence that victim and her boyfriend had argued over whether victim Evidence that victim and her boyfriend had argued over whether victim
had been unfaithful was excluded by Rape Shield Law despite the fact that had been unfaithful was excluded by Rape Shield Law despite the fact that
it provided possible motive for fabrication of charge. it provided possible motive for fabrication of charge.
Commonwealth v. Stansbury, 640 A.2d 1368, 1371 (Pa. Super. 1994) Commonwealth v. Stansbury, 640 A.2d 1368, 1371 (Pa. Super. 1994)
Evidence of previous sexual assaults by defendant on victim was admissible. Evidence of previous sexual assaults by defendant on victim was admissible.
Presence of pubic hairs from third party in victims underwear, while Presence of pubic hairs from third party in victims underwear, while
probative of defense theory that another person had sexual relations probative of defense theory that another person had sexual relations
with victim, was not admissible as defendant admitted to having sexual with victim, was not admissible as defendant admitted to having sexual
relations with victim. relations with victim.
Commonwealth v. Wall, 606 A.2d 449 (Pa. Super. 1992), appeal denied, Commonwealth v. Wall, 606 A.2d 449 (Pa. Super. 1992), appeal denied,
532 Pa. 645, 614 A.2d 1142 (1992) 532 Pa. 645, 614 A.2d 1142 (1992)
Evidence of child victims previous claims of sexual abuse by mother were Evidence of child victims previous claims of sexual abuse by mother were
admissible in prosecution against uncle who had custody of victim at admissible in prosecution against uncle who had custody of victim at
time of alleged crime as it suggested motive for escaping discipline from time of alleged crime as it suggested motive for escaping discipline from
custodian. custodian.
Commonwealth v. Weber, 549 Pa. 430, 701 A.2d 531 (1997) Commonwealth v. Weber, 549 Pa. 430, 701 A.2d 531 (1997)
Defendant failed to establish relevance of victims abortion and therefore Defendant failed to establish relevance of victims abortion and therefore
evidence of the abortion was inadmissible. evidence of the abortion was inadmissible.
D. Evidence that Negates the Sexual Conduct D. Evidence that Negates the Sexual Conduct
In Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), the In Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983), the
Pennsylvania Supreme Court permitted evidence of a sexual encounter between the Pennsylvania Supreme Court permitted evidence of a sexual encounter between the
victim and defendant two hours before the victim alleged she was raped. The purpose victim and defendant two hours before the victim alleged she was raped. The purpose
of the evidence was not to question the victims chastity but to explain the presence of of the evidence was not to question the victims chastity but to explain the presence of
semen in the victims body. The Supreme Court noted another exception to the Rape semen in the victims body. The Supreme Court noted another exception to the Rape
Shield Law: Shield Law:
We do not believe the legislature intended to prohibit relevant We do not believe the legislature intended to prohibit relevant
evidence which directly negates the act of intercourse with evidence which directly negates the act of intercourse with
which a defendant is charged. Where, as here, a defendant offers which a defendant is charged. Where, as here, a defendant offers
evidence of intercourse close enough in time to the act with evidence of intercourse close enough in time to the act with
which he is charged that it is relevant to explain the presence which he is charged that it is relevant to explain the presence
of objective signs of intercourse, the protections afforded to the of objective signs of intercourse, the protections afforded to the
complainant by the Rape Shield Law do not apply. complainant by the Rape Shield Law do not apply.
Pretrial Pretrial
Id. at 611, 470 A.2d at 84. See also, Commonwealth v. Stansbury, 640 A.2d 1368, 1370- Id. at 611, 470 A.2d at 84. See also, Commonwealth v. Stansbury, 640 A.2d 1368, 1370-
1371 (Pa. Super. 1994). 1371 (Pa. Super. 1994).
The trial court must make a determination, after an offer of proof, that evidence The trial court must make a determination, after an offer of proof, that evidence
falls within the exception noted in Majorana. See Commonwealth v. Jorgenson, 512 Pa. falls within the exception noted in Majorana. See Commonwealth v. Jorgenson, 512 Pa.
601, 605, 517 A.2d 1287, 1290 (1986). 601, 605, 517 A.2d 1287, 1290 (1986).
For this exception to apply, the defendant must first make a specific proffer to the For this exception to apply, the defendant must first make a specific proffer to the
court of exactly what evidence he seeks to admit and precisely why it is relevant to his court of exactly what evidence he seeks to admit and precisely why it is relevant to his
defense. Once the appropriate proffer has been made: defense. Once the appropriate proffer has been made:
[T]he court must then undertake a three part analysis of the [T]he court must then undertake a three part analysis of the
substance of the proffer. At the trial level, the court must substance of the proffer. At the trial level, the court must
conduct an in camera hearing at which they must determine: conduct an in camera hearing at which they must determine:
1) whether the proffered evidence is relevant to the defense at 1) whether the proffered evidence is relevant to the defense at
trial; 2) whether the proffered evidence is cumulative of evidence trial; 2) whether the proffered evidence is cumulative of evidence
otherwise admissible at trial; and 3) whether the proffered otherwise admissible at trial; and 3) whether the proffered
evidence is more probative than prejudicial. evidence is more probative than prejudicial.
Commonwealth v. Wall, 606 A.2d 449, 457 (Pa. Super. 1992), appeal denied, 532 Pa. 645, Commonwealth v. Wall, 606 A.2d 449, 457 (Pa. Super. 1992), appeal denied, 532 Pa. 645,
614 A.2d 1142 (1992); see also, Commonwealth v. Stansbury, 640 A.2d 1368, 1371 (Pa. 614 A.2d 1142 (1992); see also, Commonwealth v. Stansbury, 640 A.2d 1368, 1371 (Pa.
Super. 1994). Super. 1994).
E. Nonconsensual Sexual Conduct E. Nonconsensual Sexual Conduct
Because evidence of prior sexual assaults is not considered conduct of the victim Because evidence of prior sexual assaults is not considered conduct of the victim
and thus does not impugn the victims reputation for chastity, this type of evidence is and thus does not impugn the victims reputation for chastity, this type of evidence is
not covered by the Rape Shield Law and is admissible if relevant and conforming to not covered by the Rape Shield Law and is admissible if relevant and conforming to
the traditional rules of evidence. Commonwealth v. Johnson, 536 Pa. 153, 638 A.2d the traditional rules of evidence. Commonwealth v. Johnson, 536 Pa. 153, 638 A.2d
940 (1994); Commonwealth v. Holder, 815 A.2d 1115, 1119 (Pa. Super. 2003), appeal 940 (1994); Commonwealth v. Holder, 815 A.2d 1115, 1119 (Pa. Super. 2003), appeal
denied, 573 Pa. 703, 827 A.2d 430 (2003). Such evidence is evaluated under the general denied, 573 Pa. 703, 827 A.2d 430 (2003). Such evidence is evaluated under the general
evidentiary rules. Commonwealth v. Fink, 791 A.2d 1235, 12242 (Pa. Super. 2002). evidentiary rules. Commonwealth v. Fink, 791 A.2d 1235, 12242 (Pa. Super. 2002).
6.9 PRIVILEGES 6.9 PRIVILEGES
A. Privileges17 A. Privileges17
In Commonwealth v. Eck, 605 A.2d 1248 (Pa. Super. 1992), the Superior Court In Commonwealth v. Eck, 605 A.2d 1248 (Pa. Super. 1992), the Superior Court
outlined a schematic by which the courts could discern what level of access, if any, a outlined a schematic by which the courts could discern what level of access, if any, a
defendant should be afforded when requesting confidentially privileged materials. defendant should be afforded when requesting confidentially privileged materials.
Relying on United States Supreme Court precedent in Pennsylvania v. Ritchie, 480 U.S. Relying on United States Supreme Court precedent in Pennsylvania v. Ritchie, 480 U.S.
39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), and a number of Pennsylvania Supreme Court 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), and a number of Pennsylvania Supreme Court
decisions, the Superior Court stated: decisions, the Superior Court stated:
17 The spousal privileges are discussed in Chapter 7, Section 7.18, SPOUSAL PRIVILEGE. 17 The spousal privileges are discussed in Chapter 7, Section 7.18, SPOUSAL PRIVILEGE.
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First, a defendants right to access is dependent upon whether First, a defendants right to access is dependent upon whether
the information is protected by a statutory privilege and whether the information is protected by a statutory privilege and whether
that privilege is absolute. Information which is protected by an that privilege is absolute. Information which is protected by an
absolute statutory privilege is not subject to disclosure and denial absolute statutory privilege is not subject to disclosure and denial
of access to a criminal defendant is required.... of access to a criminal defendant is required....
On the other hand, a privilege which is statutorily enacted, but On the other hand, a privilege which is statutorily enacted, but
which is subject to exceptions, is not absolute and access to a which is subject to exceptions, is not absolute and access to a
criminal defendant may be required. criminal defendant may be required.
... ...
Finally, privileges which are not statutorily enacted, but rather are Finally, privileges which are not statutorily enacted, but rather are
recognized by the common law, must yield to the constitutional recognized by the common law, must yield to the constitutional
rights of a criminal defendant. rights of a criminal defendant.
Eck, 605 A.2d at 1252-1253. Eck, 605 A.2d at 1252-1253.
B. Medical or Mental Health Professional Records B. Medical or Mental Health Professional Records
1. Patient Physician Privilege 1. Patient Physician Privilege
Pennsylvania has codified a patient-physician privilege in civil proceedings. Pennsylvania has codified a patient-physician privilege in civil proceedings.
5929. Physicians not to disclose information 5929. Physicians not to disclose information
No physician shall be allowed, in any civil matter, to disclose No physician shall be allowed, in any civil matter, to disclose
any information which he acquired in attending the patient in any information which he acquired in attending the patient in
a professional capacity, and which was necessary to enable a professional capacity, and which was necessary to enable
him to act in that capacity, which shall tend to blacken the him to act in that capacity, which shall tend to blacken the
character of the patient, without consent of said patient, character of the patient, without consent of said patient,
except in civil matters brought by such patient, for damages except in civil matters brought by such patient, for damages
on account of personal injuries. on account of personal injuries.
This privilege does not apply in criminal proceedings. Id.; See This privilege does not apply in criminal proceedings. Id.; See
Commonwealth v. Ellis, 608 A.2d 1090, 1093 (Pa. Super. 1992), appeal denied, Commonwealth v. Ellis, 608 A.2d 1090, 1093 (Pa. Super. 1992), appeal denied,
533 Pa. 623, 620 A.2d 489 (1993). 533 Pa. 623, 620 A.2d 489 (1993).
In Commonwealth v. Petrino, 480 A.2d 1160 (Pa. Super. 1984), cert. In Commonwealth v. Petrino, 480 A.2d 1160 (Pa. Super. 1984), cert.
denied, 471 U.S. 1069, 105 U.S. 2149, 85 L.Ed.2d 505 (1985), the Pennsylvania denied, 471 U.S. 1069, 105 U.S. 2149, 85 L.Ed.2d 505 (1985), the Pennsylvania
Supreme Court expressly held that Section 5929 applies only in civil cases. 480 Supreme Court expressly held that Section 5929 applies only in civil cases. 480
A.2d at 1170. A.2d at 1170.
2. Disease Prevention and Control Act 2. Disease Prevention and Control Act
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Records maintained in accordance with the Disease Prevention and Records maintained in accordance with the Disease Prevention and
Control Law of 1955, 35 Pa.Stat. 521.1 et seq. are confidential: Control Law of 1955, 35 Pa.Stat. 521.1 et seq. are confidential:
521.15. Confidentiality of reports and records 521.15. Confidentiality of reports and records
State and local health authorities may not disclose reports of State and local health authorities may not disclose reports of
diseases, any records maintained as a result of any action diseases, any records maintained as a result of any action
taken in consequence of such reports, or any other records taken in consequence of such reports, or any other records
maintained pursuant to this act or any regulations, to any maintained pursuant to this act or any regulations, to any
person who is not a member of the department or of a local person who is not a member of the department or of a local
board or department of health, except where necessary to board or department of health, except where necessary to
carry out the purposes of this act. State and local health carry out the purposes of this act. State and local health
authorities may permit the use of data contained in disease authorities may permit the use of data contained in disease
reports and other records, maintained pursuant to this act, reports and other records, maintained pursuant to this act,
or any regulation, for research purposes, subject to strict or any regulation, for research purposes, subject to strict
supervision by the health authorities to insure that the use supervision by the health authorities to insure that the use
of the reports and records is limited to the specific research of the reports and records is limited to the specific research
purposes. purposes.
35 Pa.Stat. 521.15. 35 Pa.Stat. 521.15.
In a case where the defendant was charged with rape, the confidentiality In a case where the defendant was charged with rape, the confidentiality
requirements of Section 521.15 precluded disclosure of defendants medical requirements of Section 521.15 precluded disclosure of defendants medical
records from county health department in order to determine whether he had records from county health department in order to determine whether he had
gonorrhea at time of crime. Commonwealth v. Moore, 526 Pa. 152, 157, 584 A.2d gonorrhea at time of crime. Commonwealth v. Moore, 526 Pa. 152, 157, 584 A.2d
936, 939 (1991). 936, 939 (1991).
3. Patient Psychiatrist / Psychologist Privilege 3. Patient Psychiatrist / Psychologist Privilege
In Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989), the In Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989), the
Supreme Court of Pennsylvania held that, under the Pennsylvania Constitution, Supreme Court of Pennsylvania held that, under the Pennsylvania Constitution,
a defendants right to confrontation and compulsory process overrode any non- a defendants right to confrontation and compulsory process overrode any non-
statutory privilege asserted by the Commonwealth. Specifically, the Court found statutory privilege asserted by the Commonwealth. Specifically, the Court found
the lack of a statutory psychotherapeutic privilege important. Id. 523 Pa. at 431, the lack of a statutory psychotherapeutic privilege important. Id. 523 Pa. at 431,
567 A.2d at 1359. 567 A.2d at 1359.
In response to the result in Lloyd, the Pennsylvania legislature amended In response to the result in Lloyd, the Pennsylvania legislature amended
42 Pa. Cons. Stat. Ann. 5944 to explicitly cover psychiatric records. Accordingly, 42 Pa. Cons. Stat. Ann. 5944 to explicitly cover psychiatric records. Accordingly,
courts in subsequent cases have recognized that the absolute statutory privilege courts in subsequent cases have recognized that the absolute statutory privilege
contained in 42 Pa. Cons. Stat. Ann. 5944 overrides the defendants right to contained in 42 Pa. Cons. Stat. Ann. 5944 overrides the defendants right to
confrontation and compulsory process under the Pennsylvania Constitution. confrontation and compulsory process under the Pennsylvania Constitution.
See Commonwealth v. Smith, 606 A.2d 939 (Pa. Super. 1992), appeal denied, See Commonwealth v. Smith, 606 A.2d 939 (Pa. Super. 1992), appeal denied,
533 Pa. 624, 620 A.2d 490 (1993). Therefore, psychiatric records not in the 533 Pa. 624, 620 A.2d 490 (1993). Therefore, psychiatric records not in the
Commonwealths possession but which are held at treating facilities are not Commonwealths possession but which are held at treating facilities are not
discoverable and are privileged absent the consent of the patient. Commonwealth discoverable and are privileged absent the consent of the patient. Commonwealth
v. Weiss, --- A.3d ---, 81 A.3d 767, 792 (2013). v. Weiss, --- A.3d ---, 81 A.3d 767, 792 (2013).
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The Pennsylvania legislature has enacted the following statutory privilege The Pennsylvania legislature has enacted the following statutory privilege
regarding communications between patients and psychiatrists/psychologists: regarding communications between patients and psychiatrists/psychologists:
5944. Confidential communications to psychiatrists 5944. Confidential communications to psychiatrists

or licensed psychologists or licensed psychologists
No psychiatrist or person who has been licensed under No psychiatrist or person who has been licensed under
the act of March 23, 1972 (P.L. 136, No. 52), to practice the act of March 23, 1972 (P.L. 136, No. 52), to practice
psychology shall be, without the written consent of his psychology shall be, without the written consent of his
client, examined in any civil or criminal matter as to any client, examined in any civil or criminal matter as to any
information acquired in the course of his professional information acquired in the course of his professional
services in behalf of such client. The confidential services in behalf of such client. The confidential
relations and communications between a psychologist or relations and communications between a psychologist or
psychiatrist and his client shall be on the same basis as psychiatrist and his client shall be on the same basis as
those provided or prescribed by law between an attorney those provided or prescribed by law between an attorney
and client. and client.
42 Pa.Cons.Stat.Ann. 5944. Since this is an absolute statutory privilege in 42 Pa.Cons.Stat.Ann. 5944. Since this is an absolute statutory privilege in
civil or criminal matters, neither the Commonwealth nor the defendant has the civil or criminal matters, neither the Commonwealth nor the defendant has the
power to subpoena such records without the patients consent. Commonwealth power to subpoena such records without the patients consent. Commonwealth
v. Appleby, 856 A.2d 191, 199 (Pa. Super. 2004); Commonwealth v. Smith, 606 v. Appleby, 856 A.2d 191, 199 (Pa. Super. 2004); Commonwealth v. Smith, 606
Once the party asserting the privilege shows that the privilege has been Once the party asserting the privilege shows that the privilege has been
properly invoked, the burden shifts to the party seeking the disclosure to show properly invoked, the burden shifts to the party seeking the disclosure to show
that disclosure of the information will not violate the accorded privilege. In re that disclosure of the information will not violate the accorded privilege. In re
T.B., 75 A.3d 485, 496 (Pa. Super. 2013)(quoting In re Subpoena No. 22, 709 A.2d T.B., 75 A.3d 485, 496 (Pa. Super. 2013)(quoting In re Subpoena No. 22, 709 A.2d
385, 388 (Pa. Super. 1998). 385, 388 (Pa. Super. 1998).
C. Sexual Assault Counselor Privilege C. Sexual Assault Counselor Privilege
1. Sexual Assault Counselors 1. Sexual Assault Counselors
Sexual assault counselors serve an important function for the rape victim. Sexual assault counselors serve an important function for the rape victim.
As the Pennsylvania Supreme Court has explained: As the Pennsylvania Supreme Court has explained:
Extensive research has been conducted documenting the Extensive research has been conducted documenting the
severe psychological, emotional, and social difficulties severe psychological, emotional, and social difficulties
suffered by rape victims, which cause a condition known suffered by rape victims, which cause a condition known
as rape trauma syndrome. The devastating effects of as rape trauma syndrome. The devastating effects of
this condition create a compelling need for a confidential this condition create a compelling need for a confidential
counseling relationship to enable the victim to cope with counseling relationship to enable the victim to cope with
the trauma. It is generally recognized that rape traumatizes the trauma. It is generally recognized that rape traumatizes
its victim to a degree far beyond that experienced by victims its victim to a degree far beyond that experienced by victims
of other crimes. Rape crisis centers have been developed of other crimes. Rape crisis centers have been developed
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nationwide to help victims of this most degrading offense nationwide to help victims of this most degrading offense
recover from its debilitating effects. recover from its debilitating effects.
Rape crisis centers are service facilities staffed with Rape crisis centers are service facilities staffed with
counselors extensively trained in crisis counseling. These counselors extensively trained in crisis counseling. These
counselors provide victims with much needed physical, counselors provide victims with much needed physical,
psychological and social support during the recovery period psychological and social support during the recovery period
that the victims otherwise might not be able to afford. At that the victims otherwise might not be able to afford. At
the onset of counseling the victim is informed that her the onset of counseling the victim is informed that her
communications will be confidential, and her willingness communications will be confidential, and her willingness
to disclose information quite obviously is based upon that to disclose information quite obviously is based upon that
expectation. The very nature of the relationship between expectation. The very nature of the relationship between
a counselor and the victim of such a crime exposes the a counselor and the victim of such a crime exposes the
necessity for the same confidentiality that would exist if necessity for the same confidentiality that would exist if
private psychotherapeutic treatment were obtained. If that private psychotherapeutic treatment were obtained. If that
confidentiality is removed, that trust is severely undermined, confidentiality is removed, that trust is severely undermined,
and the maximum therapeutic benefit is lost. The inability and the maximum therapeutic benefit is lost. The inability
of the crisis center to achieve its goals is detrimental not of the crisis center to achieve its goals is detrimental not
only to the victim but also to society, whose interest in the only to the victim but also to society, whose interest in the
report and prosecution of sexual assault crimes is furthered report and prosecution of sexual assault crimes is furthered
by the emotional and physical well-being of the victim. by the emotional and physical well-being of the victim.
Commonwealth v. Wilson, 529 Pa. 268, 276-277, 602 A.2d 1290, 1295, cert. Commonwealth v. Wilson, 529 Pa. 268, 276-277, 602 A.2d 1290, 1295, cert.
denied, 504 U.S. 977, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992). denied, 504 U.S. 977, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992).
2. The Rape Counselor Privilege18 2. The Rape Counselor Privilege18

The Pennsylvania Legislature has enacted the following statutory privilege The Pennsylvania Legislature has enacted the following statutory privilege
with respect to rape counselors: with respect to rape counselors:
5945.1. Confidential communications with sexual 5945.1. Confidential communications with sexual
assault counselors assault counselors
... ...
(b) Privilege.-- (b) Privilege.--
(1) No sexual assault counselor or an interpreter (1) No sexual assault counselor or an interpreter
translating the communication between a sexual assault translating the communication between a sexual assault
counselor and a victim may, without the written consent counselor and a victim may, without the written consent
of the victim, disclose the victims confidential oral or of the victim, disclose the victims confidential oral or
written communications to the counselor nor consent to written communications to the counselor nor consent to
be examined in any court or criminal proceeding. be examined in any court or criminal proceeding.
(2) No coparticipant who is present during counseling (2) No coparticipant who is present during counseling
may disclose a victims confidential communication may disclose a victims confidential communication
18 Additional discussion of the Sexual Assault Counselor Privilege, in relation to the way it may be invoked at the time of trial regarding 18 Additional discussion of the Sexual Assault Counselor Privilege, in relation to the way it may be invoked at the time of trial regarding
testimony, is provided in Chapter 7, Section 7.15, Sexual Assault Counselor Privilege. testimony, is provided in Chapter 7, Section 7.15, Sexual Assault Counselor Privilege.
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made during the counseling session nor consent to be made during the counseling session nor consent to be
examined in any civil or criminal proceeding without the examined in any civil or criminal proceeding without the
written consent of the victim. written consent of the victim.
42 Pa.Cons.Stat.Ann. 5945.1(b)(1). 42 Pa.Cons.Stat.Ann. 5945.1(b)(1).
A sexual assault counselor is defined as: A sexual assault counselor is defined as:
A person who is engaged in any office, institution or A person who is engaged in any office, institution or
center defined as a rape crisis center under this section, center defined as a rape crisis center under this section,
who has undergone 40 hours of sexual assault training who has undergone 40 hours of sexual assault training
and is under the control of a direct services supervisor and is under the control of a direct services supervisor
of a rape crisis center, whose primary purpose is the of a rape crisis center, whose primary purpose is the
rendering of advice, counseling or assistance to victims rendering of advice, counseling or assistance to victims
of sexual assault. of sexual assault.
42 Pa.Cons.Stat.Ann. 5945.1(a). 42 Pa.Cons.Stat.Ann. 5945.1(a).
These privileges are absolute privileges that apply to oral or written These privileges are absolute privileges that apply to oral or written
communications, and therefore override a defendants right to confrontation and communications, and therefore override a defendants right to confrontation and
compulsory process. V.B.T. v. Family Services of Western Pennsylvania, 705 A.2d compulsory process. V.B.T. v. Family Services of Western Pennsylvania, 705 A.2d
1325 (Pa. Super. 1998), affd, 556 Pa. 430, 728 A.2d 953 (1999); Commonwealth 1325 (Pa. Super. 1998), affd, 556 Pa. 430, 728 A.2d 953 (1999); Commonwealth
v. Askew, 666 A.2d 1062, 1065 (Pa. Super. 1995), appeal denied, 546 Pa. 635, 683 v. Askew, 666 A.2d 1062, 1065 (Pa. Super. 1995), appeal denied, 546 Pa. 635, 683
A.2d 876 (1996). A.2d 876 (1996).
Commonwealth v. Davis, 543 Pa. 628, 674 A.2d 214 (1996) Commonwealth v. Davis, 543 Pa. 628, 674 A.2d 214 (1996)
(rape counselor privilege prohibits disclosure not only of (rape counselor privilege prohibits disclosure not only of
communications between victim and counselor, but also communications between victim and counselor, but also
of records created during the course of the confidential of records created during the course of the confidential
relationship). relationship).
NOTE: Commonwealth v. Cody, 584 A.2d 992 (Pa. Super. 1991) NOTE: Commonwealth v. Cody, 584 A.2d 992 (Pa. Super. 1991)
(plurality), appeal denied, 527 Pa. 622, 592 A.2d 42 (1991), (plurality), appeal denied, 527 Pa. 622, 592 A.2d 42 (1991),
allowed for an in camera review of rape counseling records allowed for an in camera review of rape counseling records
for statements relating to the facts surrounding the alleged for statements relating to the facts surrounding the alleged
offense. However, in Commonwealth v. Askew, 666 A.2d 1062 offense. However, in Commonwealth v. Askew, 666 A.2d 1062
(Pa. Super. 1995), appeal denied, 546 Pa. 635, 683 A.2d 876 (Pa. Super. 1995), appeal denied, 546 Pa. 635, 683 A.2d 876
(1996), the Superior Court held that the privilege was absolute (1996), the Superior Court held that the privilege was absolute
and applied to both oral communications and written records: and applied to both oral communications and written records:
The statutory sexual assault counselor privilege The statutory sexual assault counselor privilege
prevents sexual assault counselors from disclosing prevents sexual assault counselors from disclosing
confidential communications made to them by the confidential communications made to them by the
victims of sex-related crimes. Commonwealth victims of sex-related crimes. Commonwealth
v. Gibbs, 434 Pa.Super. 280, 284, 642 A.2d 1132, v. Gibbs, 434 Pa.Super. 280, 284, 642 A.2d 1132,
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1134 (1994). This privilege is absolute and applies 1134 (1994). This privilege is absolute and applies
to oral communication as well as written records to oral communication as well as written records
created during the course of the confidential created during the course of the confidential
relationship. Id. The privilege prohibits the relationship. Id. The privilege prohibits the
revelation of confidential communication obtained revelation of confidential communication obtained
during counseling to both the Commonwealth and during counseling to both the Commonwealth and
to the defendant. to the defendant.
666 A.2d at 1064-1065. 666 A.2d at 1064-1065.
However, if the attorney for the Commonwealth is in possession of records However, if the attorney for the Commonwealth is in possession of records
subject to the rape counselor privilege, the defendant is entitled to the production subject to the rape counselor privilege, the defendant is entitled to the production
of such records. Commonwealth v. Davis, 650 A.2d 452, 460 (Pa. Super. 1994), of such records. Commonwealth v. Davis, 650 A.2d 452, 460 (Pa. Super. 1994),
affd, 543 Pa. 628, 674 A.2d 214 (1996); Commonwealth v. Higby, 559 A.2d 939, affd, 543 Pa. 628, 674 A.2d 214 (1996); Commonwealth v. Higby, 559 A.2d 939,
Commonwealth v. Askew, 666 A.2d 1062, 1065-1066 (Pa. Super. Commonwealth v. Askew, 666 A.2d 1062, 1065-1066 (Pa. Super.
1995), appeal denied, 546 Pa. 635, 683 A.2d 876 (1996), (the fact that 1995), appeal denied, 546 Pa. 635, 683 A.2d 876 (1996), (the fact that
victim gave counselor permission to reveal communications to police victim gave counselor permission to reveal communications to police
and to treating doctor did not waive privilege, as such disclosures by and to treating doctor did not waive privilege, as such disclosures by
the counselor were mandated by child abuse reporting requirements). the counselor were mandated by child abuse reporting requirements).
In Commonwealth v. Wilson, 529 Pa. 268, 278, 602 A.2d 1290, 1296 In Commonwealth v. Wilson, 529 Pa. 268, 278, 602 A.2d 1290, 1296
(1992), cert. denied, 504 U.S. 977, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992), the (1992), cert. denied, 504 U.S. 977, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992), the
Pennsylvania Supreme Court, in a case involving Section 5945.1, followed the Pennsylvania Supreme Court, in a case involving Section 5945.1, followed the
analysis of the United States Supreme Courts plurality decision in Pennsylvania analysis of the United States Supreme Courts plurality decision in Pennsylvania
v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40, 22 Fed.R.Evid.Serv. 1 (1987). v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40, 22 Fed.R.Evid.Serv. 1 (1987).
The defendant had been charged with and convicted of the rape and indecent The defendant had been charged with and convicted of the rape and indecent
assault of an adult victim. Prior to trial, the defendant had issued a subpoena assault of an adult victim. Prior to trial, the defendant had issued a subpoena
duces tecum on Alice Paul House, an Indiana County rape crisis center, requesting duces tecum on Alice Paul House, an Indiana County rape crisis center, requesting
the production of the centers entire file on the victim. Counsel for Alice Paul the production of the centers entire file on the victim. Counsel for Alice Paul
House filed a motion to quash the subpoena, which was granted by the trial House filed a motion to quash the subpoena, which was granted by the trial
court on the basis of the privilege provided by 42 Pa.Cons.Stat.Ann. 5945.1. court on the basis of the privilege provided by 42 Pa.Cons.Stat.Ann. 5945.1.
The defendant appealed, arguing that the privilege applied to a rape assault The defendant appealed, arguing that the privilege applied to a rape assault
counselor and not the record developed through consultation held by Alice Paul counselor and not the record developed through consultation held by Alice Paul
House. Furthermore, the defendant argued that his confrontation rights would be House. Furthermore, the defendant argued that his confrontation rights would be
violated if he could not review the records prior to trial to look for impeachment violated if he could not review the records prior to trial to look for impeachment
evidence. evidence.
The Pennsylvania Supreme Court held that the privilege was absolute The Pennsylvania Supreme Court held that the privilege was absolute
and the prohibition against the disclosure of the records did not violate the and the prohibition against the disclosure of the records did not violate the
confrontation clause. The right to confront ones witnesses is satisfied if defense confrontation clause. The right to confront ones witnesses is satisfied if defense
counsel receives wide latitude at trial to question witnesses. Commonwealth counsel receives wide latitude at trial to question witnesses. Commonwealth
v. Wilson, 529 Pa. at 278, 602 A.2d at 1296. When defense counsel had the v. Wilson, 529 Pa. at 278, 602 A.2d at 1296. When defense counsel had the
opportunity to and in fact did cross-examine the victim in the sexual assault trial opportunity to and in fact did cross-examine the victim in the sexual assault trial
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regarding her recollection of events and other relevant matters, the defendants regarding her recollection of events and other relevant matters, the defendants
right to confrontation was satisfied. Id. right to confrontation was satisfied. Id.
In Commonwealth v. Kennedy, 604 A.2d 1036 (Pa. Super. 1992) (en banc), In Commonwealth v. Kennedy, 604 A.2d 1036 (Pa. Super. 1992) (en banc),
appeal denied, 531 Pa. 638, 611 A.2d 711 (1992), the Pennsylvania Superior Court appeal denied, 531 Pa. 638, 611 A.2d 711 (1992), the Pennsylvania Superior Court
held that the absolute privilege granted under Section 5945.1 prohibited even an held that the absolute privilege granted under Section 5945.1 prohibited even an
in camera inspection of the records of a rape counselors treatment of the victim. in camera inspection of the records of a rape counselors treatment of the victim.
D. Children and Youth Division Records The Child Protective Services Law D. Children and Youth Division Records The Child Protective Services Law
The Child Protective Services Law, 23 Pa.Cons.Stat.Ann. 6301 et seq., was The Child Protective Services Law, 23 Pa.Cons.Stat.Ann. 6301 et seq., was
enacted to involve law enforcement agencies in responding to child abuse, to establish enacted to involve law enforcement agencies in responding to child abuse, to establish
children and youth social service agencies to investigate reports of abuse, to provide children and youth social service agencies to investigate reports of abuse, to provide
protection for children from further abuse, and to provide rehabilitative services for protection for children from further abuse, and to provide rehabilitative services for
children and parents. 23 Pa.Cons.Stat.Ann. 6302(b). children and parents. 23 Pa.Cons.Stat.Ann. 6302(b).
Once a report of suspected abuse is received, the county CYS must commence an Once a report of suspected abuse is received, the county CYS must commence an
investigation, which includes a determination of the risk of harm to the child or children investigation, which includes a determination of the risk of harm to the child or children
if they continue to remain in the home environment, as well as a determination of the if they continue to remain in the home environment, as well as a determination of the
nature, extent, and cause of any abuse, and to take any action necessary to provide for nature, extent, and cause of any abuse, and to take any action necessary to provide for
the safety of the child or children. 23 Pa.Cons.Stat.Ann. 6368. If the investigation the safety of the child or children. 23 Pa.Cons.Stat.Ann. 6368. If the investigation
indicates serious physical injury, a medical examination shall be performed on the indicates serious physical injury, a medical examination shall be performed on the
subject child by a certified medical practitioner. Id. subject child by a certified medical practitioner. Id.
In relation to confidentiality, the CPS Law provides that although CYS workers In relation to confidentiality, the CPS Law provides that although CYS workers
may release information to the police, there is no requirement that they do so. See 23 may release information to the police, there is no requirement that they do so. See 23
Pa.Cons.Stat.Ann. 6339 and 6340. Furthermore, child abuse records must be made Pa.Cons.Stat.Ann. 6339 and 6340. Furthermore, child abuse records must be made
available to a trial court in a criminal case, by way of a court order or subpoena, pursuant available to a trial court in a criminal case, by way of a court order or subpoena, pursuant
to 23 Pa.Cons.Stat.Ann. 6340(a)(5). to 23 Pa.Cons.Stat.Ann. 6340(a)(5).
6339. Confidentiality of reports 6339. Confidentiality of reports
Except as otherwise provided in this subchapter, reports made Except as otherwise provided in this subchapter, reports made
pursuant to this chapter, including, but not limited to, report pursuant to this chapter, including, but not limited to, report
summaries of child abuse and written reports made pursuant summaries of child abuse and written reports made pursuant
to section 6313(b) and (c) (relating to reporting procedure) to section 6313(b) and (c) (relating to reporting procedure)
as well as any other information obtained, reports written or as well as any other information obtained, reports written or
photographs or X-rays taken concerning alleged instances of photographs or X-rays taken concerning alleged instances of
child abuse in the possession of the department or a county child abuse in the possession of the department or a county
agency shall be confidential. agency shall be confidential.
23 Pa.Cons.Stat.Ann. 6339. The section regarding release of the confidential 23 Pa.Cons.Stat.Ann. 6339. The section regarding release of the confidential
information states, in pertinent part: information states, in pertinent part:
Pretrial Pretrial
6340. Release of information in confidential reports 6340. Release of information in confidential reports
(a) General rule.--Reports specified in section 6339 (relating (a) General rule.--Reports specified in section 6339 (relating
to confidentiality of reports) shall only be made available to: to confidentiality of reports) shall only be made available to:
(1) An authorized official of a county agency, of a Federal (1) An authorized official of a county agency, of a Federal
agency that has a need for such information to carry out its agency that has a need for such information to carry out its
responsibilities under law to protect children from abuse and responsibilities under law to protect children from abuse and
neglect or . . . . neglect or . . . .
(2) A physician examining or treating a child or the director or (2) A physician examining or treating a child or the director or
a person specifically designated in writing by the director of a person specifically designated in writing by the director of
any hospital or other medical institution where a child is being any hospital or other medical institution where a child is being
treated when the physician or the director or the designee of treated when the physician or the director or the designee of
the director suspects the child of being an abused child or a the director suspects the child of being an abused child or a
child alleged to be in need of protection under this chapter. child alleged to be in need of protection under this chapter.
... ...
(5) A court of competent jurisdiction, including a magisterial (5) A court of competent jurisdiction, including a magisterial
district judge, a judge of the Philadelphia Municipal Court district judge, a judge of the Philadelphia Municipal Court
and a judge of the Pittsburgh Magistrates Court, pursuant and a judge of the Pittsburgh Magistrates Court, pursuant
to court order or subpoena in a criminal matter involving to court order or subpoena in a criminal matter involving
a charge of child abuse under section 6303(b) (relating to a charge of child abuse under section 6303(b) (relating to
definitions). Disclosure through testimony shall be subject to definitions). Disclosure through testimony shall be subject to
the restrictions of subsection (c). the restrictions of subsection (c).
... ...
(7) The Attorney General. (7) The Attorney General.

... ...
(9) Law enforcement officials of any jurisdiction, as long (9) Law enforcement officials of any jurisdiction, as long
as the information is relevant in the course of investigating as the information is relevant in the course of investigating
cases of: cases of:
(i) Homicide or other criminal offense set forth in (i) Homicide or other criminal offense set forth in
section 6344(c) (relating to information relating to section 6344(c) (relating to information relating to
prospective child-care personnel), sexual abuse, prospective child-care personnel), sexual abuse,
sexual exploitation, serious bodily injury or serious sexual exploitation, serious bodily injury or serious
physical injury perpetrated by persons whether or not physical injury perpetrated by persons whether or not
related to the victim. related to the victim.
(ii) Child abuse perpetrated by persons who are not (ii) Child abuse perpetrated by persons who are not
family members. family members.
(iii) Repeated physical injury to a child under (iii) Repeated physical injury to a child under
Pretrial Pretrial
circumstances which indicate that the childs health, circumstances which indicate that the childs health,
safety or welfare is harmed or threatened. safety or welfare is harmed or threatened.
(iv) A missing child report. (iv) A missing child report.
(10) The district attorney or his designee or other law (10) The district attorney or his designee or other law
enforcement official, as set forth in the county protocols for enforcement official, as set forth in the county protocols for
investigative teams required in section 6365(c) (relating to investigative teams required in section 6365(c) (relating to
services for prevention, investigation and treatment of child services for prevention, investigation and treatment of child
abuse), shall receive, immediately after the county agency abuse), shall receive, immediately after the county agency
has ensured the safety of the child, reports of abuse, either has ensured the safety of the child, reports of abuse, either
orally or in writing, according to regulations promulgated by orally or in writing, according to regulations promulgated by
the department, from the county agency in which the initial the department, from the county agency in which the initial
report of suspected child abuse or initial inquiry into the report of suspected child abuse or initial inquiry into the
report gives evidence that the abuse is: report gives evidence that the abuse is:
(i) a criminal offense set forth in section 6344(c), not (i) a criminal offense set forth in section 6344(c), not
including an offense under 18 Pa.C.S. 4304 (relating including an offense under 18 Pa.C.S. 4304 (relating
to endangering welfare of children) or an equivalent to endangering welfare of children) or an equivalent
crime under Federal law or the law of another state, crime under Federal law or the law of another state,
sexual abuse, sexual exploitation or serious bodily sexual abuse, sexual exploitation or serious bodily
injury perpetrated by persons, whether or not related injury perpetrated by persons, whether or not related
to the victim; to the victim;
(ii) child abuse perpetrated by persons who are not (ii) child abuse perpetrated by persons who are not
family members; or family members; or
(iii) serious physical injury involving extensive and (iii) serious physical injury involving extensive and
severe bruising, burns, broken bones, lacerations, severe bruising, burns, broken bones, lacerations,
internal bleeding, shaken baby syndrome or choking internal bleeding, shaken baby syndrome or choking
or an injury that significantly impairs a childs physical or an injury that significantly impairs a childs physical
functioning, either temporarily or permanently. functioning, either temporarily or permanently.
... ...
(17) A member of a child fatality or near fatality review team (17) A member of a child fatality or near fatality review team
under section 6365(d). under section 6365(d).
(b) Release of information to subject of report.--At any time (b) Release of information to subject of report.--At any time
and upon written request, a subject of a report may receive and upon written request, a subject of a report may receive
a copy of all information, except that prohibited from being a copy of all information, except that prohibited from being
disclosed by subsection (c), contained in the Statewide central disclosed by subsection (c), contained in the Statewide central
register or in any report filed pursuant to section 6313 (relating register or in any report filed pursuant to section 6313 (relating
to reporting procedure). to reporting procedure).
(c) Protecting identity of person making report.--Except (c) Protecting identity of person making report.--Except
Pretrial Pretrial
for reports pursuant to subsection (a)(9) and (10), the release for reports pursuant to subsection (a)(9) and (10), the release
of data that would identify the person who made a report of of data that would identify the person who made a report of
suspected child abuse or the person who cooperated in a suspected child abuse or the person who cooperated in a
subsequent investigation is prohibited unless the secretary subsequent investigation is prohibited unless the secretary
finds that the release will not be detrimental to the safety of finds that the release will not be detrimental to the safety of
that person. Law enforcement officials shall treat all reporting that person. Law enforcement officials shall treat all reporting
sources as confidential informants. sources as confidential informants.
(d) Exclusion of administrative information.--Information (d) Exclusion of administrative information.--Information

maintained in the Statewide central register which was obtained maintained in the Statewide central register which was obtained
from an investigating agency in relation to an appeal request from an investigating agency in relation to an appeal request
shall not be released to any person except a department official, shall not be released to any person except a department official,
as provided by regulation.19 as provided by regulation.19
1. Disclosure to a Defendant Classified as a Subject of a Report under the 1. Disclosure to a Defendant Classified as a Subject of a Report under the
Child Protective Services Law Child Protective Services Law
The subject of a report is defined in the Child Protective Services Law as: The subject of a report is defined in the Child Protective Services Law as:
Subject of the report. Subject of the report.
Any child, parent, guardian or other person responsible for Any child, parent, guardian or other person responsible for
the welfare of a child or any alleged or actual perpetrator the welfare of a child or any alleged or actual perpetrator
or school employee named in a report made to the or school employee named in a report made to the
Department of Public Welfare or a county agency under Department of Public Welfare or a county agency under
this chapter. this chapter.
23 Pa.Cons.Stat.Ann. 6303. The identical definition is used in the regulations 23 Pa.Cons.Stat.Ann. 6303. The identical definition is used in the regulations
regarding child protective services, 55 Pa.Code 3490.4. regarding child protective services, 55 Pa.Code 3490.4.
In Commonwealth v. Kennedy, 604 A.2d 1036 (Pa. Super. 1992) (en In Commonwealth v. Kennedy, 604 A.2d 1036 (Pa. Super. 1992) (en
banc), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992), the Pennsylvania banc), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992), the Pennsylvania
Superior Court found that a defendant who is a subject of a child abuse report Superior Court found that a defendant who is a subject of a child abuse report
must be granted direct access to all of the victims confidential child protective must be granted direct access to all of the victims confidential child protective
service records. 604 A.2d at 1040 (emphasis in original). The Court specifically service records. 604 A.2d at 1040 (emphasis in original). The Court specifically
commented that direct access by the defendant to all information contained in commented that direct access by the defendant to all information contained in
the CPS investigating file excepting, under limited circumstances, information the CPS investigating file excepting, under limited circumstances, information
which would identify the reporter of the abuse is necessary. 604 A.2d at 1042. which would identify the reporter of the abuse is necessary. 604 A.2d at 1042.
This includes any psychological or psychiatric reports, if such reports form the This includes any psychological or psychiatric reports, if such reports form the
basis for initiating the investigation of abuse or if such reports are a part of the basis for initiating the investigation of abuse or if such reports are a part of the
investigation . . . . Id. investigation . . . . Id.
The Superior Court distinguished Pennsylvania v. Ritchie, 480 U.S. The Superior Court distinguished Pennsylvania v. Ritchie, 480 U.S.
39, 107 S.Ct. 989, 94 L.Ed.2d 40, 22 Fed.R.Evid.Serv. 1 (1987), which requires 39, 107 S.Ct. 989, 94 L.Ed.2d 40, 22 Fed.R.Evid.Serv. 1 (1987), which requires
an in camera review by the trial court before disclosure to the defense, as only an in camera review by the trial court before disclosure to the defense, as only
Pretrial Pretrial
analyzing the discovery of CYS reports under section (a)20 rather than subsection analyzing the discovery of CYS reports under section (a)20 rather than subsection
(b) which specifically grants access to a subject of a report. The Superior Court (b) which specifically grants access to a subject of a report. The Superior Court
held that such a defendant/subject of a report is entitled to full access to CPS held that such a defendant/subject of a report is entitled to full access to CPS
records,21 excluding information concerning the identity of the reporter of the records,21 excluding information concerning the identity of the reporter of the
suspected abuse, and finding that an in camera review by the trial court was suspected abuse, and finding that an in camera review by the trial court was
too restrictive. Furthermore, even the identity of the reporter of the abuse had too restrictive. Furthermore, even the identity of the reporter of the abuse had
to be disclosed in certain cases because the former statute, with wording very to be disclosed in certain cases because the former statute, with wording very
similar to the current section, only granted a qualified privilege to the agency to similar to the current section, only granted a qualified privilege to the agency to
withhold this identifying information. The Court ruled that the same balancing withhold this identifying information. The Court ruled that the same balancing
test applied in cases involving the identity of a confidential informant would be test applied in cases involving the identity of a confidential informant would be
appropriate disclosure is only prohibited upon a finding that the release would appropriate disclosure is only prohibited upon a finding that the release would
be detrimental to the safety of the reporter. Kennedy, 604 A.2d at 1043. be detrimental to the safety of the reporter. Kennedy, 604 A.2d at 1043.
Therefore, in order for a trial court to be in compliance with Kennedy, in Therefore, in order for a trial court to be in compliance with Kennedy, in
accordance with section (b) of the current law, 23 Pa.Cons.Stat.Ann. 6340(b), accordance with section (b) of the current law, 23 Pa.Cons.Stat.Ann. 6340(b),
the defendant in a criminal case who falls under the classification of a subject of a the defendant in a criminal case who falls under the classification of a subject of a
report is entitled to a copy of all information contained in the Statewide central report is entitled to a copy of all information contained in the Statewide central
register or in any report filed pursuant to section 6313 (relating to reporting register or in any report filed pursuant to section 6313 (relating to reporting
procedure). Section 6336(a) details the information that must be maintained in procedure). Section 6336(a) details the information that must be maintained in
the Statewide central register, and therefore must be disclosed when requested the Statewide central register, and therefore must be disclosed when requested
by a defendant/subject of a report. This information is extensive and includes: by a defendant/subject of a report. This information is extensive and includes:
6336. Information in Statewide central register 6336. Information in Statewide central register
(a) Information authorized.--The Statewide central (a) Information authorized.--The Statewide central
register shall include and shall be limited to the following register shall include and shall be limited to the following
information: information:
(1) The names, Social Security numbers, age and (1) The names, Social Security numbers, age and
sex of the subjects of the reports. sex of the subjects of the reports.
(2) The date or dates and the nature and extent of (2) The date or dates and the nature and extent of
the alleged instances of suspected child abuse. the alleged instances of suspected child abuse.
(3) The home addresses of the subjects of the (3) The home addresses of the subjects of the
report. report.
(4) The county in which the suspected abuse (4) The county in which the suspected abuse
occurred. occurred.
(5) Family composition. (5) Family composition.
(6) The name and relationship to the abused child (6) The name and relationship to the abused child
of other persons named in the report. of other persons named in the report.
(7) Factors contributing to the abuse. (7) Factors contributing to the abuse.
(8) The source of the report. (8) The source of the report.
(9) Services planned or provided. (9) Services planned or provided.
20 The former statute, 11 P.S. 22154(a) (repealed), was in effect at the time but the language is substantially similar to the current 20 The former statute, 11 P.S. 22154(a) (repealed), was in effect at the time but the language is substantially similar to the current
statute 23 Pa.Cons.stat.ann. 6340(a).e, 11 P.S. statute 23 Pa.Cons.stat.ann. 6340(a).e, 11 P.S.
21 The Superior Court noted that separate files should be maintained under the Child Protective Services Law from other services provided 21 The Superior Court noted that separate files should be maintained under the Child Protective Services Law from other services provided
by the Department of Human Services; therefore, the Kennedy decision requires the full files compiled in compliance with the CPSL. by the Department of Human Services; therefore, the Kennedy decision requires the full files compiled in compliance with the CPSL.
Commonwealth v. Kennedy, 604 A.2d at 1042. Commonwealth v. Kennedy, 604 A.2d at 1042.
Pretrial Pretrial
(10) Whether the report is a founded report or an (10) Whether the report is a founded report or an
indicated report. indicated report.
(11) Information obtained by the department in (11) Information obtained by the department in
relation to a perpetrators or school employees relation to a perpetrators or school employees
request to release, amend or expunge request to release, amend or expunge
information retained by the department or the information retained by the department or the
county agency. county agency.
(12) The progress of any legal proceedings brought (12) The progress of any legal proceedings brought
on the basis of the report of suspected child on the basis of the report of suspected child
abuse. abuse.
(13) Whether a criminal investigation has been (13) Whether a criminal investigation has been
undertaken and the result of the investigation undertaken and the result of the investigation
and of any criminal prosecution. and of any criminal prosecution.
No information other than that permitted in this subsection No information other than that permitted in this subsection
shall be retained in the Statewide central register. shall be retained in the Statewide central register.
23 Pa.Cons.Stat.Ann. 6336(a). The information contained in 23 Pa.Cons.Stat. 23 Pa.Cons.Stat.Ann. 6336(a). The information contained in 23 Pa.Cons.Stat.
Ann. 6313 largely parallels the information in Section 6336(a) above, although Ann. 6313 largely parallels the information in Section 6336(a) above, although
it does not include a reference to legal proceedings or criminal investigations it does not include a reference to legal proceedings or criminal investigations
brought on the basis of the report, among a few other items. brought on the basis of the report, among a few other items.
In Dauphin County Social Services for Children and Youth v. Department In Dauphin County Social Services for Children and Youth v. Department
of Public Welfare, 855 A.2d 159 (Pa. Cmwlth 2004), the Commonwealth Court of Public Welfare, 855 A.2d 159 (Pa. Cmwlth 2004), the Commonwealth Court
of Pennsylvania ruled that the requirement from Kennedy of the disclosure of of Pennsylvania ruled that the requirement from Kennedy of the disclosure of
all the information maintained by the child protective services division was all the information maintained by the child protective services division was
restricted to criminal cases only, and that an action in expunction was civil in restricted to criminal cases only, and that an action in expunction was civil in
nature. Therefore, only the information designated in 23 Pa.Cons.Stat.Ann. nature. Therefore, only the information designated in 23 Pa.Cons.Stat.Ann.
6340(b) should be provided to a subject of a report in a civil proceeding such 6340(b) should be provided to a subject of a report in a civil proceeding such
as a request for expunction. as a request for expunction.
In a case in which the defendant did not fall under the classification of a In a case in which the defendant did not fall under the classification of a
subject of a child abuse report because he had no familial or otherwise ties to subject of a child abuse report because he had no familial or otherwise ties to
the alleged victim, Commonwealth v. Reed, 644 A.2d 1223 (Pa. Super. 1994), the alleged victim, Commonwealth v. Reed, 644 A.2d 1223 (Pa. Super. 1994),
appeal denied, 540 Pa. 580, 655 A.2d 512 (1995), the Superior Court found that appeal denied, 540 Pa. 580, 655 A.2d 512 (1995), the Superior Court found that
the requirement of an in camera inspection from Pennsylvania v. Ritchie, 480 the requirement of an in camera inspection from Pennsylvania v. Ritchie, 480
U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40, 22 Fed.R.Evid.Serv. 1 (1987) applied with U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40, 22 Fed.R.Evid.Serv. 1 (1987) applied with
equal force under Pennsylvanias state confrontation clause. Therefore, because equal force under Pennsylvanias state confrontation clause. Therefore, because
the defendant in Reed did not fall under the designation from Section 6340 as a the defendant in Reed did not fall under the designation from Section 6340 as a
subject of a report, this decision does not alter the holding from Commonwealth subject of a report, this decision does not alter the holding from Commonwealth
v. Kennedy, 604 A.2d 1036 (Pa. Super. 1992) (en banc), appeal denied, 531 Pa. v. Kennedy, 604 A.2d 1036 (Pa. Super. 1992) (en banc), appeal denied, 531 Pa.
638, 611 A.2d 711 (1992) which rules out an in camera inspection. 638, 611 A.2d 711 (1992) which rules out an in camera inspection.
2. Disclosure to a Defendant Not Classified as a Subject of a Report under 2. Disclosure to a Defendant Not Classified as a Subject of a Report under
the Child Protective Services Law the Child Protective Services Law
Pretrial Pretrial
The issue of a request for child protective services files from a defendant The issue of a request for child protective services files from a defendant
who is not classified as a subject of a report will involve criminal charges which who is not classified as a subject of a report will involve criminal charges which
are unrelated to the childs CPS records. If the criminal charge were related to the are unrelated to the childs CPS records. If the criminal charge were related to the
CPS records, then the defendant would be listed as a perpetrator and designated CPS records, then the defendant would be listed as a perpetrator and designated
as a subject of a report. This request will probably be made to discover evidence as a subject of a report. This request will probably be made to discover evidence
of motive or bias. of motive or bias.
In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40, 22 In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40, 22
Fed.R.Evid.Serv. 1 (1987), the United States Supreme Court, in a plurality decision, Fed.R.Evid.Serv. 1 (1987), the United States Supreme Court, in a plurality decision,
held that an in camera review by a trial court of child protective services records held that an in camera review by a trial court of child protective services records
satisfies a request for disclosure under 23 Pa.Cons.Stat.Ann. 6340(a) and the satisfies a request for disclosure under 23 Pa.Cons.Stat.Ann. 6340(a) and the
Due Process Clause. The defendant in Ritchie was originally convicted of rape Due Process Clause. The defendant in Ritchie was originally convicted of rape
and related sexual abuse charges involving his young daughter in the Court of and related sexual abuse charges involving his young daughter in the Court of
Common Pleas of Allegheny County. Eventually, his appeal reached the United Common Pleas of Allegheny County. Eventually, his appeal reached the United
States Supreme Court regarding his request for the production of the records States Supreme Court regarding his request for the production of the records
from the child protection agency that investigated the abuse. The trial court had from the child protection agency that investigated the abuse. The trial court had
refused the defendants request, but the Superior Court of Pennsylvania found refused the defendants request, but the Superior Court of Pennsylvania found
a Confrontation Clause violation, and therefore vacated and remanded for the a Confrontation Clause violation, and therefore vacated and remanded for the
disclosure of the records which the trial judge, upon in camera review, found to disclosure of the records which the trial judge, upon in camera review, found to
be relevant. Additionally, the defense lawyer was permitted to examine the entire be relevant. Additionally, the defense lawyer was permitted to examine the entire
file to argue the relevance of statements that might appear in the records. Upon file to argue the relevance of statements that might appear in the records. Upon
appeal by the Commonwealth, the Pennsylvania Supreme Court agreed that the appeal by the Commonwealth, the Pennsylvania Supreme Court agreed that the
reversal and remand were appropriate, but broadened the disclosure, based reversal and remand were appropriate, but broadened the disclosure, based
upon the Confrontation Clause, in that the defendant was entitled to review the upon the Confrontation Clause, in that the defendant was entitled to review the
entire agency file to search for any useful evidence. entire agency file to search for any useful evidence.
A plurality of the United States Supreme Court held that Confrontation A plurality of the United States Supreme Court held that Confrontation
Clause analysis was not the appropriate review because the Sixth Amendment Clause analysis was not the appropriate review because the Sixth Amendment
right to confrontation only applies in a trial setting.22 Rather, the case presented right to confrontation only applies in a trial setting.22 Rather, the case presented
a Due Process Clause review in regard to the request for discovery and pre-trial a Due Process Clause review in regard to the request for discovery and pre-trial
disclosure. In light of the strong statutory confidentiality issues, the United States disclosure. In light of the strong statutory confidentiality issues, the United States
Supreme Court ordered that the trial court was to review the entire agency file Supreme Court ordered that the trial court was to review the entire agency file
and determine whether it contained information that probably would have and determine whether it contained information that probably would have
changed the outcome of his trial. 480 U.S. at 58, 107 S.Ct. at 989. It reversed the changed the outcome of his trial. 480 U.S. at 58, 107 S.Ct. at 989. It reversed the
Pennsylvania Supreme Courts order to the extent that it allowed the defendant Pennsylvania Supreme Courts order to the extent that it allowed the defendant
immediate access to the entire agency file under the former statute, 11 Pa.Stat. immediate access to the entire agency file under the former statute, 11 Pa.Stat.
2215 (repealed), however it gave the defendant this more limited access to 2215 (repealed), however it gave the defendant this more limited access to
the confidential records on the basis that the state interest in keeping the files the confidential records on the basis that the state interest in keeping the files
confidential could not be compelling given that the Child Protective Services Law confidential could not be compelling given that the Child Protective Services Law
provides for the disclosure of such files in limited circumstances. As a result, the provides for the disclosure of such files in limited circumstances. As a result, the
in camera review was reinstated. Although the defendant was the father of the in camera review was reinstated. Although the defendant was the father of the
victim, and probably a subject of the report, the Supreme Court only reviewed victim, and probably a subject of the report, the Supreme Court only reviewed
the case under 11 Pa.Stat. 2215(a) and not subsection (b). the case under 11 Pa.Stat. 2215(a) and not subsection (b).
22 The United States Supreme Court stated: the right to confrontation is a trial right, designed to prevent improper restrictions on the types 22 The United States Supreme Court stated: the right to confrontation is a trial right, designed to prevent improper restrictions on the types
of questions that defense counsel may ask during cross-examination . . . . Pennsylvania v. Ritchie, 480 U.S. at 52, 107 S.Ct. at 999. of questions that defense counsel may ask during cross-examination . . . . Pennsylvania v. Ritchie, 480 U.S. at 52, 107 S.Ct. at 999.
Pretrial Pretrial
In a non-sexual assault case, Commonwealth v. Nissly, 549 A.2d 918 (Pa. In a non-sexual assault case, Commonwealth v. Nissly, 549 A.2d 918 (Pa.
Super. 1988), appeal denied, 522 Pa. 595, 562 A.2d 310 (1989), the Superior Super. 1988), appeal denied, 522 Pa. 595, 562 A.2d 310 (1989), the Superior
Court adopted the in camera review process for children and youth services files Court adopted the in camera review process for children and youth services files
specified in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40, 22 specified in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40, 22
Fed.R.Evid.Serv. 1 (1987) and stated that the Pennsylvania Constitution provides Fed.R.Evid.Serv. 1 (1987) and stated that the Pennsylvania Constitution provides
no greater disclosure. 549 A.2d at 921. no greater disclosure. 549 A.2d at 921.
Chapter 7 Chapter 7
TRIAL ISSUES TRIAL ISSUES

Trial Issues Trial Issues
Chapter Seven Table of Contents Chapter Seven Table of Contents

7.1 CHAPTER OVERVIEW ............................................................................................................... 5 7.1 CHAPTER OVERVIEW ............................................................................................................... 5

7.2 SUGGESTED STAGES OF A CRIMINAL JURY TRIAL............................................... 6 7.2 SUGGESTED STAGES OF A CRIMINAL JURY TRIAL............................................... 6
7.3 JURY SELECTION VOIR DIRE ........................................................................................... 6 7.3 JURY SELECTION VOIR DIRE ........................................................................................... 6
A. Strike for Cause................................................................................................................... 7 A. Strike for Cause................................................................................................................... 7
B. Peremptory Challenge ..................................................................................................... 8 B. Peremptory Challenge ..................................................................................................... 8
7.4 TESTIMONY OF COMPLAINANT .....................................................................................10 7.4 TESTIMONY OF COMPLAINANT .....................................................................................10
A. No Corroboration Required ........................................................................................10 A. No Corroboration Required ........................................................................................10
B. Temporarily Excluding Spectators From Courtroom .......................................12 B. Temporarily Excluding Spectators From Courtroom .......................................12
1. When victim testifies to embarrassing or lurid details ....................12 1. When victim testifies to embarrassing or lurid details ....................12
2. When threats of violence to victim or witness .....................................13 2. When threats of violence to victim or witness .....................................13
C. Competency of Minor Complainant or Witness .................................................13 C. Competency of Minor Complainant or Witness .................................................13
1. Minor victim or witness .................................................................................13 1. Minor victim or witness .................................................................................13
2. Contention of Taint .......................................................................................14 2. Contention of Taint .......................................................................................14
D. Impeachment of complainant ....................................................................................16 D. Impeachment of complainant ....................................................................................16
1. Truth and veracity ............................................................................................16 1. Truth and veracity ............................................................................................16
2. Complainants prior sexual conduct .........................................................17 2. Complainants prior sexual conduct .........................................................17
E. Cross-examination of Complainant by Pro Se Defendant...............................19 E. Cross-examination of Complainant by Pro Se Defendant...............................19
F. Expert Testimony Victim Responses and Behaviors.....................................20 F. Expert Testimony Victim Responses and Behaviors.....................................20
1. Scope ......................................................................................................................22 1. Scope ......................................................................................................................22
2. Qualifications of Expert ..................................................................................22 2. Qualifications of Expert ..................................................................................22
3. Relevancy of Testimony of Expert..............................................................23 3. Relevancy of Testimony of Expert..............................................................23
(a) Prohibition on Opinion Regarding Credibility ..............................23 (a) Prohibition on Opinion Regarding Credibility ..............................23
(b) Availability of Witness .............................................................................23 (b) Availability of Witness .............................................................................23
7.5 TESTIMONY OF CHILD VICTIM OR WITNESS BY 7.5 TESTIMONY OF CHILD VICTIM OR WITNESS BY
CONTEMPORANEOUS ALTERNATIVE METHOD ..................................................23 CONTEMPORANEOUS ALTERNATIVE METHOD ..................................................23
A. Permissible Pursuant to 42 Pa.Cons.Stat.Ann. 5985 ...................................23 A. Permissible Pursuant to 42 Pa.Cons.Stat.Ann. 5985 ...................................23
B. Procedure ............................................................................................................................25 B. Procedure ............................................................................................................................25
C. Closed-Circuit Television is Permissible Alternative Method.......................27 C. Closed-Circuit Television is Permissible Alternative Method.......................27
7.6 TESTIMONY OF CHILD VICTIM OR WITNESS BY RECORDED ................... 7.6 TESTIMONY OF CHILD VICTIM OR WITNESS BY RECORDED ...................
TESTIMONY...................................................................................................................................27 TESTIMONY...................................................................................................................................27
A. Permissible Pursuant to 42 Pa.Cons.Stat.Ann. 5984.1 ...............................27 A. Permissible Pursuant to 42 Pa.Cons.Stat.Ann. 5984.1 ...............................27
B. Procedure ............................................................................................................................29 B. Procedure ............................................................................................................................29

C. Videotape is Permissible Method .............................................................................31 C. Videotape is Permissible Method .............................................................................31
7.7 EVIDENCE OF PROMPT COMPLAINT............................................................................31 7.7 EVIDENCE OF PROMPT COMPLAINT............................................................................31
A. Permissible in Prosecutions Case in Chief ...........................................................31 A. Permissible in Prosecutions Case in Chief ...........................................................31
1. Evidence to Explain Lack of Prompt Complaint ..................................34 1. Evidence to Explain Lack of Prompt Complaint ..................................34
B. Prompt Complaint Testimony Disallowed ............................................................35 B. Prompt Complaint Testimony Disallowed ............................................................35
C. Prompt Complaint Instruction...................................................................................35 C. Prompt Complaint Instruction...................................................................................35
7.8 RESISTANCE NOT REQUIRED .............................................................................................37 7.8 RESISTANCE NOT REQUIRED .............................................................................................37
7.9 EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS ............................................39 7.9 EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS ............................................39
A. Prohibition Against Use of Prior Bad Acts/Criminal Activity .......................39 A. Prohibition Against Use of Prior Bad Acts/Criminal Activity .......................39
B. Admissibility of Evidence Under Pa.R.E. 404(b)(2) ..........................................40 B. Admissibility of Evidence Under Pa.R.E. 404(b)(2) ..........................................40
1. Natural history of the case or natural development of the Facts .......41 1. Natural history of the case or natural development of the Facts .......41
2. Impeachment evidence ..................................................................................42 2. Impeachment evidence ..................................................................................42
(a) Impeachment of testifying defendant ...............................................42 (a) Impeachment of testifying defendant ...............................................42
(b) Impeachment of testifying character witness ...............................43 (b) Impeachment of testifying character witness ...............................43
3. Introduction of prior bad acts that are used to threaten the victim..... 43 3. Introduction of prior bad acts that are used to threaten the victim..... 43
4. Common scheme, plan or design ...............................................................44 4. Common scheme, plan or design ...............................................................44
5. Knowledge, identity or absence of mistake or accident...................45 5. Knowledge, identity or absence of mistake or accident...................45
(a) Identity ...........................................................................................................45 (a) Identity ...........................................................................................................45
(b) Absence of Mistake or Accident ..........................................................46 (b) Absence of Mistake or Accident ..........................................................46
6. Motive ....................................................................................................................46 6. Motive ....................................................................................................................46
7. Prior Bad Acts That Are Not Convictions ...............................................46 7. Prior Bad Acts That Are Not Convictions ...............................................46
8. In Rebuttal to Dispel False Inferences......................................................47 8. In Rebuttal to Dispel False Inferences......................................................47
C. Prerequisite for Use Reasonable Notice .............................................................47 C. Prerequisite for Use Reasonable Notice .............................................................47
1. No Requirement that notice be in writing..............................................48 1. No Requirement that notice be in writing..............................................48
2. Defense must show prejudice......................................................................48 2. Defense must show prejudice......................................................................48
D. Prerequisite for Use Probative Value ...................................................................48 D. Prerequisite for Use Probative Value ...................................................................48
1. The Remoteness test........................................................................................50 1. The Remoteness test........................................................................................50
E. Prerequisite for Use Cautionary Instruction ....................................................51 E. Prerequisite for Use Cautionary Instruction ....................................................51
7.10 SELECTED HEARSAY RULES AND EXCEPTIONS ...................................................51 7.10 SELECTED HEARSAY RULES AND EXCEPTIONS ...................................................51
A. Hearsay Generally Not Admissible ...........................................................................51 A. Hearsay Generally Not Admissible ...........................................................................51
B. Standard of Review .........................................................................................................53 B. Standard of Review .........................................................................................................53
C. Exceptions to the Hearsay Rule: C. Exceptions to the Hearsay Rule:
Availability of Declarant Immaterial .......................................................................53 Availability of Declarant Immaterial .......................................................................53
1. Present sense impression Pa.R.E. 803(1) ...........................................57 1. Present sense impression Pa.R.E. 803(1) ...........................................57
2. Excited utterance Pa.R.E. 803(2) ............................................................58 2. Excited utterance Pa.R.E. 803(2) ............................................................58
3. State of Mind exception Pa.R.E. 803(3) ............................................60 3. State of Mind exception Pa.R.E. 803(3) ............................................60
4. Statements for purposes of medical diagnosis 4. Statements for purposes of medical diagnosis
or treatment Pa.R.E. 803(4) ......................................................................61 or treatment Pa.R.E. 803(4) ......................................................................61
(a) Prohibition: statements for purposes of litigation ......................62 (a) Prohibition: statements for purposes of litigation ......................62
(b) Prohibition: identification statements .............................................62 (b) Prohibition: identification statements .............................................62
5. Records of regularly conducted activity Pa.R.E. 803(6) ...............63 5. Records of regularly conducted activity Pa.R.E. 803(6) ...............63
(a) Authentication.............................................................................................64 (a) Authentication.............................................................................................64
(b) Prohibition: opinions and diagnoses ................................................64 (b) Prohibition: opinions and diagnoses ................................................64
(c) Prohibition: lack of trustworthiness..................................................64 (c) Prohibition: lack of trustworthiness..................................................64
(d) Prohibition: confrontation clause ......................................................64 (d) Prohibition: confrontation clause ......................................................64
(e) The Uniform Business Records as Evidence Act ..........................65 (e) The Uniform Business Records as Evidence Act ..........................65
6. Admission by party-opponent ............................................................................68 6. Admission by party-opponent ............................................................................68
(a) Threatening Statements..........................................................................68 (a) Threatening Statements..........................................................................68
D. Exceptions to the Hearsay Rule: Availability of Declarant Necessary.......69 D. Exceptions to the Hearsay Rule: Availability of Declarant Necessary.......69
1. Prior Inconsistent Statement .......................................................................70 1. Prior Inconsistent Statement .......................................................................70
2. Pretrial Identification by a Witness ..........................................................71 2. Pretrial Identification by a Witness ..........................................................71
3. Recorded Recollection ....................................................................................72 3. Recorded Recollection ....................................................................................72
E. Exceptions to the Hearsay Rule: Declarant Unavailable .................................72 E. Exceptions to the Hearsay Rule: Declarant Unavailable .................................72
1. Former testimony, Pa.R.E. 804(b)(1) ........................................................74 1. Former testimony, Pa.R.E. 804(b)(1) ........................................................74
(a) Full and Fair Opportunity to Cross-Examine ........................75 (a) Full and Fair Opportunity to Cross-Examine ........................75
2. Statement under belief of impending death..........................................75 2. Statement under belief of impending death..........................................75
3. Statement against interest ............................................................................76 3. Statement against interest ............................................................................76
4. Exception Because of Wrongdoing ............................................................77 4. Exception Because of Wrongdoing ............................................................77
F. Attacking and Supporting the Declarants Credibility .....................................77 F. Attacking and Supporting the Declarants Credibility .....................................77
7.11 SPECIAL HEARSAY EXCEPTION: TENDER YEARS EXCEPTION ..................78 7.11 SPECIAL HEARSAY EXCEPTION: TENDER YEARS EXCEPTION ..................78
A. Factors to be Considered for Admission ................................................................80 A. Factors to be Considered for Admission ................................................................80
1. The Child Complainant testifies or is unavailable ..............................80 1. The Child Complainant testifies or is unavailable ..............................80
(a) Hearing required for unavailablity....................................................81 (a) Hearing required for unavailablity....................................................81
2. Admissibility Depends Upon Whether 2. Admissibility Depends Upon Whether
Testimonial or Nontestimonial ...................................................................81 Testimonial or Nontestimonial ...................................................................81
(a) Nontestimonial ...........................................................................................82 (a) Nontestimonial ...........................................................................................82
(b) Testimonial ...................................................................................................82 (b) Testimonial ...................................................................................................82
(c) Determination of Testimonial or Nontestimonial ........................83 (c) Determination of Testimonial or Nontestimonial ........................83
B. Sufficient Indicia of Reliability ...............................................................................85 B. Sufficient Indicia of Reliability ...............................................................................85
C. Notice Requirement........................................................................................................85 C. Notice Requirement........................................................................................................85
7.12 COMPETENCY OF ACCUSED................................................................................................86 7.12 COMPETENCY OF ACCUSED................................................................................................86
7.13 COMPETENCY OF WITNESSES ..........................................................................................87 7.13 COMPETENCY OF WITNESSES ..........................................................................................87

A. Pa.R.E., Rule 601 ...............................................................................................................87 A. Pa.R.E., Rule 601 ...............................................................................................................87
B. Spousal Competence ......................................................................................................89 B. Spousal Competence ......................................................................................................89
1. Spousal Competence........................................................................................89 1. Spousal Competence........................................................................................89
2. Requirement of a valid marriage................................................................90 2. Requirement of a valid marriage................................................................90
C. Competency of Child ......................................................................................................90 C. Competency of Child ......................................................................................................90
D. Hypnotically Refreshed Testimony ..........................................................................91 D. Hypnotically Refreshed Testimony ..........................................................................91
7.14 MISTAKE AS TO AGE ................................................................................................................92 7.14 MISTAKE AS TO AGE ................................................................................................................92
A. Victim Below Age 14 Years ..........................................................................................93 A. Victim Below Age 14 Years ..........................................................................................93
B. Victim Above Age 14 Years ..........................................................................................93 B. Victim Above Age 14 Years ..........................................................................................93
7.15 SEXUAL ASSAULT COUNSELOR PRIVILEGE .............................................................93 7.15 SEXUAL ASSAULT COUNSELOR PRIVILEGE .............................................................93
A. Waiver...................................................................................................................................95 A. Waiver...................................................................................................................................95
7.16 911 TAPES AND OTHER AUDIOTAPED EVIDENCE.............................................96 7.16 911 TAPES AND OTHER AUDIOTAPED EVIDENCE.............................................96
A. Use of 911 Tapes and Other Audiotapes at Trial ................................................96 A. Use of 911 Tapes and Other Audiotapes at Trial ................................................96
1. Natural History or Development of Case ................................................96 1. Natural History or Development of Case ................................................96
2. Initial Report of Crime ....................................................................................97 2. Initial Report of Crime ....................................................................................97
B. Issues Regarding Admissibility..................................................................................97 B. Issues Regarding Admissibility..................................................................................97
1. Foundation and Authentication ..................................................................97 1. Foundation and Authentication ..................................................................97
2. Hearsay Considerations .................................................................................98 2. Hearsay Considerations .................................................................................98
3. Constitutional Right of Confrontation......................................................98 3. Constitutional Right of Confrontation......................................................98
(a) excited utterances.....................................................................................99 (a) excited utterances.....................................................................................99
(b) present sense impressions ................................................................100 (b) present sense impressions ................................................................100
4. Relevancy...........................................................................................................101 4. Relevancy...........................................................................................................101
5. Prejudice ............................................................................................................102 5. Prejudice ............................................................................................................102
7.17 EVIDENCE OF SEXUALLY EXPLICIT MATERIALS ..............................................103 7.17 EVIDENCE OF SEXUALLY EXPLICIT MATERIALS ..............................................103
A. Basic Rules of Admissibility .....................................................................................104 A. Basic Rules of Admissibility .....................................................................................104
B. Sexually Explicit Materials Probative Value ...................................................104 B. Sexually Explicit Materials Probative Value ...................................................104
C. Sexually Explicit Materials Lessening Prejudicial Impact .......................105 C. Sexually Explicit Materials Lessening Prejudicial Impact .......................105
D. Sexually Explicit Materials Harmless Error ...................................................105 D. Sexually Explicit Materials Harmless Error ...................................................105
7.18 SPOUSAL PRIVILEGE ...........................................................................................................106 7.18 SPOUSAL PRIVILEGE ...........................................................................................................106
A. Spousal Privilege Testimonial Privilege ..........................................................106 A. Spousal Privilege Testimonial Privilege ..........................................................106
B. Spousal Privilege Confidential Communications Privilege .....................107 B. Spousal Privilege Confidential Communications Privilege .....................107
Addendum 1: Suggested Stages of a Criminal Jury Trial ...........................................................110 Addendum 1: Suggested Stages of a Criminal Jury Trial ...........................................................110
Addendum 2: Offenses Which Require Registration Under Subchapter H .......................114 Addendum 2: Offenses Which Require Registration Under Subchapter H .......................114
Chapter Seven Chapter Seven

This chapter examines issues that commonly arise in the trial of rape and This chapter examines issues that commonly arise in the trial of rape and
sexual assault cases. A suggested outline of a typical criminal trial, with references to sexual assault cases. A suggested outline of a typical criminal trial, with references to
the Pennsylvania Rules of Criminal Procedure and Rules of Evidence, is provided in the Pennsylvania Rules of Criminal Procedure and Rules of Evidence, is provided in
Addendum 1. It is not intended to be a comprehensive review, but rather an accessible Addendum 1. It is not intended to be a comprehensive review, but rather an accessible
checklist for quick reference. checklist for quick reference.
Section 7.3 provides a detailed discussion on jury selection issues. Section 7.3 provides a detailed discussion on jury selection issues.
Sections 7.4 through 7.8 cover evidentiary issues that may be confronted by the Sections 7.4 through 7.8 cover evidentiary issues that may be confronted by the
prosecution. These sections involve necessary evidence offered by the prosecution in prosecution. These sections involve necessary evidence offered by the prosecution in
its case-in-chief to prove the elements of the crime(s) charged, with an emphasis on the its case-in-chief to prove the elements of the crime(s) charged, with an emphasis on the
presentation of the victim/complainant. presentation of the victim/complainant.
Section 7.9 addresses evidence related to the accused, i.e., evidence of the alleged Section 7.9 addresses evidence related to the accused, i.e., evidence of the alleged
perpetrators prior record or past bad acts. Included in this section are the rules and laws perpetrators prior record or past bad acts. Included in this section are the rules and laws
prohibiting this type of evidence, as well as a discussion of when this type of evidence prohibiting this type of evidence, as well as a discussion of when this type of evidence
may be utilized by the prosecution in its case-in-chief, for example, evidence of common may be utilized by the prosecution in its case-in-chief, for example, evidence of common
scheme, or during cross-examination of the defendant or defense character witnesses, scheme, or during cross-examination of the defendant or defense character witnesses,
for example, impeachment. for example, impeachment.
Section 7.10 covers selected hearsay rules and exceptions. Section 7.10 covers selected hearsay rules and exceptions.
Section 7.11 covers the Tender Years Exception, and a discussion on the differences Section 7.11 covers the Tender Years Exception, and a discussion on the differences
between testimonial evidence and nontestimonial statements. between testimonial evidence and nontestimonial statements.
Sections 7.12 and 7.13 address issues of competency. Section 7.12 explains the Sections 7.12 and 7.13 address issues of competency. Section 7.12 explains the
law when the accused alleges that he is incompetent to stand trial. Section 7.13 covers law when the accused alleges that he is incompetent to stand trial. Section 7.13 covers
statutory rules for witness competency, including spousal and child competency, and a statutory rules for witness competency, including spousal and child competency, and a
brief discussion on hypnotically refreshed testimony. brief discussion on hypnotically refreshed testimony.
Section 7.14 covers the defense of mistake of age. Section 7.15 addresses the Section 7.14 covers the defense of mistake of age. Section 7.15 addresses the
sexual assault counselor privilege, and section 7.16 covers the admission of 911 tapes sexual assault counselor privilege, and section 7.16 covers the admission of 911 tapes
and the use of other audiotapes at trial. and the use of other audiotapes at trial.
Section 7.17, which includes a discussion of the admissibility and relevancy of Section 7.17, which includes a discussion of the admissibility and relevancy of
sexually explicit material, usually in the form of pornographic films and magazines, sexually explicit material, usually in the form of pornographic films and magazines,
typically obtained from a search of the accuseds home or business. typically obtained from a search of the accuseds home or business.
The chapter concludes with section 7.18 regarding the privileges against The chapter concludes with section 7.18 regarding the privileges against
testifying that may be invoked by a spouse. testifying that may be invoked by a spouse.
7.2 SUGGESTED STAGES OF A CRIMINAL JURY TRIAL 7.2 SUGGESTED STAGES OF A CRIMINAL JURY TRIAL
Included in Addendum 1 is a step-by-step list of the suggested 21 stages of a Included in Addendum 1 is a step-by-step list of the suggested 21 stages of a
criminal jury trial. The stages are easily modifiable for use in a civil jury trial or non-jury criminal jury trial. The stages are easily modifiable for use in a civil jury trial or non-jury
trial. trial.
7.3 JURY SELECTION VOIR DIRE 7.3 JURY SELECTION VOIR DIRE
Generally speaking, prospective jurors should be permitted to sit on jury panels Generally speaking, prospective jurors should be permitted to sit on jury panels
if they can be fair and impartial. Commonwealth v. Lesko, 609 Pa. 128, 242, 15 A.3d 345, if they can be fair and impartial. Commonwealth v. Lesko, 609 Pa. 128, 242, 15 A.3d 345,
413 (2011). Such a determination is to be made by the trial judge based on the jurors 413 (2011). Such a determination is to be made by the trial judge based on the jurors
answers and demeanor, and will not be reversed absent a palpable abuse of discretion. answers and demeanor, and will not be reversed absent a palpable abuse of discretion.
Commonwealth v. Marshall, 534 Pa. 488, 497, 633 A.2d 1100, 1104 (1993). Expounding Commonwealth v. Marshall, 534 Pa. 488, 497, 633 A.2d 1100, 1104 (1993). Expounding
on the fair and impartial concept, the Pennsylvania Supreme Court has given more on the fair and impartial concept, the Pennsylvania Supreme Court has given more
specific guidance, explaining: specific guidance, explaining:
The test for determining whether a prospective juror should be The test for determining whether a prospective juror should be
disqualified is whether he is willing and able to eliminate the disqualified is whether he is willing and able to eliminate the
influence of any scruples and render a verdict according to the influence of any scruples and render a verdict according to the
evidence, and this is to be determined on the basis of answers evidence, and this is to be determined on the basis of answers
to questions and demeanor.... It must be determined whether to questions and demeanor.... It must be determined whether
any biases or prejudices can be put aside on proper instruction any biases or prejudices can be put aside on proper instruction
of the court.... A challenge for cause should be granted when the of the court.... A challenge for cause should be granted when the
prospective juror has such a close relationship, familial, financial, prospective juror has such a close relationship, familial, financial,
or situational, with the parties, counsel, victims, or witnesses that or situational, with the parties, counsel, victims, or witnesses that
the court will presume a likelihood of prejudice or demonstrates the court will presume a likelihood of prejudice or demonstrates
a likelihood of prejudice by his or her conduct and answers to a likelihood of prejudice by his or her conduct and answers to
questions.... The decision on whether to disqualify is within questions.... The decision on whether to disqualify is within
the discretion of the trial court and will not be reversed in the the discretion of the trial court and will not be reversed in the
absence of a palpable abuse of discretion.... absence of a palpable abuse of discretion....
Commonwealth v. Lesko, 609 Pa. at 242-243, 15 A.3d at 413 (quoting Commonwealth Commonwealth v. Lesko, 609 Pa. at 242-243, 15 A.3d at 413 (quoting Commonwealth
v. Wilson, 543 Pa. 429, 441, 672 A.2d 293, 299 (1996), cert. denied, 519 U.S. 951, 117 v. Wilson, 543 Pa. 429, 441, 672 A.2d 293, 299 (1996), cert. denied, 519 U.S. 951, 117
S.Ct. 364, 136 L.Ed.2d 255 (1996). S.Ct. 364, 136 L.Ed.2d 255 (1996).
Past victimization questions directly relevant to the case are proper. In Past victimization questions directly relevant to the case are proper. In
Commonwealth v. Fulton, 413 A.2d 742 (Pa.Super. 1979), the Superior court held that Commonwealth v. Fulton, 413 A.2d 742 (Pa.Super. 1979), the Superior court held that
it was an abuse of discretion to refuse questions regarding venireman or their family it was an abuse of discretion to refuse questions regarding venireman or their family
members having been victims of a sexual crime where defendant was charged with members having been victims of a sexual crime where defendant was charged with
statutory rape. The Court stated: statutory rape. The Court stated:
The victim of a rape, or close relative of a victim, is not likely The victim of a rape, or close relative of a victim, is not likely
to forgive and forget or treat lightly similar conduct of others. to forgive and forget or treat lightly similar conduct of others.
Thus, the presence of such a juror in a rape trial could severely Thus, the presence of such a juror in a rape trial could severely
compromise an accuseds valued right to be tried by a competent, compromise an accuseds valued right to be tried by a competent,
fair, impartial, and unprejudiced jury. fair, impartial, and unprejudiced jury.
413 A.2d at 743. 413 A.2d at 743.
A. Strike for Cause A. Strike for Cause
A strike for cause typically is requested by one of the parties after questioning of a A strike for cause typically is requested by one of the parties after questioning of a
juror has elicited responses which establish that (1) the juror cannot be impartial or (2) juror has elicited responses which establish that (1) the juror cannot be impartial or (2)
because of a close relationship that the juror has with any of the parties, counsel, victim(s) because of a close relationship that the juror has with any of the parties, counsel, victim(s)
or witnesses, it should be deemed that the juror cannot be impartial. Commonwealth or witnesses, it should be deemed that the juror cannot be impartial. Commonwealth
v. Johnson, 445 A.2d 509, 511 (Pa. Super. 1982). Jurors should be disqualified for cause v. Johnson, 445 A.2d 509, 511 (Pa. Super. 1982). Jurors should be disqualified for cause
when they do not have the ability or willingness to eliminate the influences under which when they do not have the ability or willingness to eliminate the influences under which
they are operating and therefore cannot render a verdict according to the evidence. they are operating and therefore cannot render a verdict according to the evidence.
Commonwealth v. DeHart, 512 Pa. 235, 248, 516 A.2d 656, 663 (1986), cert. denied, Commonwealth v. DeHart, 512 Pa. 235, 248, 516 A.2d 656, 663 (1986), cert. denied,
483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987). 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987).
In Commonwealth v. Impellizzeri, 661 A.2d 422, 427 (Pa. Super. 1995), In Commonwealth v. Impellizzeri, 661 A.2d 422, 427 (Pa. Super. 1995),
appeal denied, 543 Pa. 725, 673 A.2d 332 (1996), the defendant was convicted appeal denied, 543 Pa. 725, 673 A.2d 332 (1996), the defendant was convicted
of numerous charges including several crimes including rape and involuntary of numerous charges including several crimes including rape and involuntary
deviate sexual intercourse. On appeal, the defendant argued that his counsel deviate sexual intercourse. On appeal, the defendant argued that his counsel
was forced to use peremptory challenges on two prospective jurors who was forced to use peremptory challenges on two prospective jurors who
should have been struck for cause. Although the jurors were at times should have been struck for cause. Although the jurors were at times
equivocal, the Superior Court closely reviewed the entire voir dire record and equivocal, the Superior Court closely reviewed the entire voir dire record and
found support for the trial courts denial of the motion to disqualify the jurors found support for the trial courts denial of the motion to disqualify the jurors
for cause. 661 A.2d at 427. for cause. 661 A.2d at 427.
A prospective juror should be excused for cause in two situations: A prospective juror should be excused for cause in two situations:
i. The first is where the prospective juror indicates by his i. The first is where the prospective juror indicates by his
answers that he will not be an impartial juror. answers that he will not be an impartial juror.
ii. The second is where, irrespective of the answers given ii. The second is where, irrespective of the answers given
on voir dire, the court should presume the likelihood of on voir dire, the court should presume the likelihood of
prejudice on the part of the prospective juror because prejudice on the part of the prospective juror because
the potential juror has a close relationship, be it familial, the potential juror has a close relationship, be it familial,
financial, or situational, with any of the parties, counsel, financial, or situational, with any of the parties, counsel,
victims or witnesses. victims or witnesses.
Commonwealth v. Perry, 657 A.2d 989, 990 (Pa. Super. 1995) (quoting Commonwealth Commonwealth v. Perry, 657 A.2d 989, 990 (Pa. Super. 1995) (quoting Commonwealth
v. Maxwell, 585 A.2d 1382, 1387 (Pa. Super. 1986)); Commonwealth v. Dye, 765 A.2d v. Maxwell, 585 A.2d 1382, 1387 (Pa. Super. 1986)); Commonwealth v. Dye, 765 A.2d
The appellate courts will employ a standard of review which affords great The appellate courts will employ a standard of review which affords great
deference to the trial judge, who is in the best position to assess the credibility of the deference to the trial judge, who is in the best position to assess the credibility of the
jurors and their ability to be impartial. See Commonwealth v. Bomar, 573 Pa. 426, 456, jurors and their ability to be impartial. See Commonwealth v. Bomar, 573 Pa. 426, 456,
826 A.2d 831, 849 (2003), cert. denied, 540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 826 A.2d 831, 849 (2003), cert. denied, 540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906
(2004). (2004).
When the defense does not exhaust its peremptory challenges, it is harmless error When the defense does not exhaust its peremptory challenges, it is harmless error
to overrule a challenge for cause which should have been sustained, because the juror to overrule a challenge for cause which should have been sustained, because the juror
could have been excluded with a peremptory challenge. Commonwealth v. Chambers, could have been excluded with a peremptory challenge. Commonwealth v. Chambers,
546 Pa. 370, 392, 685 A.2d 96, 107 (1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139 546 Pa. 370, 392, 685 A.2d 96, 107 (1996), cert. denied, 522 U.S. 827, 118 S.Ct. 90, 139
L.Ed.2d 46 (1997); Commonwealth v. Moore, 462 Pa. 231, 238-239, 340 A.2d 447, 451 L.Ed.2d 46 (1997); Commonwealth v. Moore, 462 Pa. 231, 238-239, 340 A.2d 447, 451
(1975). (1975).
When a criminal defendant is forced to use a peremptory challenge to excuse a When a criminal defendant is forced to use a peremptory challenge to excuse a
juror who should have been excused for cause, and as a result exhausts his peremptory juror who should have been excused for cause, and as a result exhausts his peremptory
challenges before the jury is seated, a new trial will be granted. Commonwealth v. challenges before the jury is seated, a new trial will be granted. Commonwealth v.
Blasioli, 685 A.2d 151, 157-158 (Pa. Super. 1996)(Defendant charged with rape and Blasioli, 685 A.2d 151, 157-158 (Pa. Super. 1996)(Defendant charged with rape and
indecent assault), affd, 552 Pa. 149, 713 A.2d 1117 (1998). indecent assault), affd, 552 Pa. 149, 713 A.2d 1117 (1998).
In Commonwealth v. Dye, 765 A.2d 1123 (Pa. Super. 2000), appeal denied, 566 In Commonwealth v. Dye, 765 A.2d 1123 (Pa. Super. 2000), appeal denied, 566
Pa. 577, 784 A.2d 114 (2001), the defendant had been convicted of numerous Pa. 577, 784 A.2d 114 (2001), the defendant had been convicted of numerous
sexual crimes including rape. The Superior Court reversed and remanded for sexual crimes including rape. The Superior Court reversed and remanded for
a new trial because the trial court did not grant the defendants request to a new trial because the trial court did not grant the defendants request to
strike for cause a potential juror who was married to the arresting officers strike for cause a potential juror who was married to the arresting officers
supervisor. Because the defense had run out of peremptory challenges, a new supervisor. Because the defense had run out of peremptory challenges, a new
trial was ordered. 765 A.2d at 1126. trial was ordered. 765 A.2d at 1126.
Where a prospective juror expresses substantial doubts concerning his or her Where a prospective juror expresses substantial doubts concerning his or her
ability to be an impartial juror, it is not the trial courts function to persuade them to ability to be an impartial juror, it is not the trial courts function to persuade them to
put aside these expressed doubts. As explained by the Superior Court: much depends put aside these expressed doubts. As explained by the Superior Court: much depends
upon the answers and demeanor of the potential juror as observed by the trial judge, upon the answers and demeanor of the potential juror as observed by the trial judge,
and therefore reversal is appropriate only in case of palpable error. Commonwealth v. and therefore reversal is appropriate only in case of palpable error. Commonwealth v.
Johnson, 445 A.2d 509, 512 (Pa. Super. 1982)(new trial granted after trial court refused Johnson, 445 A.2d 509, 512 (Pa. Super. 1982)(new trial granted after trial court refused
to strike juror who indicated he would have great difficulty being impartial). to strike juror who indicated he would have great difficulty being impartial).
B. Peremptory Challenge B. Peremptory Challenge
The number of peremptory challenges granted to each side is governed by the The number of peremptory challenges granted to each side is governed by the
Pennsylvania Rules of Criminal Procedure since the statutory provisions relating to Pennsylvania Rules of Criminal Procedure since the statutory provisions relating to
peremptory challenges were repealed by the Judiciary Act Repealer Act, 42 Pa.Stat. peremptory challenges were repealed by the Judiciary Act Repealer Act, 42 Pa.Stat.
20002(a). Rule of Criminal Procedure No. 634 governs the number of peremptory 20002(a). Rule of Criminal Procedure No. 634 governs the number of peremptory
challenges for the selection of principal trial jurors; the number of peremptory challenges challenges for the selection of principal trial jurors; the number of peremptory challenges
for the selection of alternate trial jurors is set forth in Pa.R.Crim.P. 645. Pa.R.Crim.P. 634 for the selection of alternate trial jurors is set forth in Pa.R.Crim.P. 645. Pa.R.Crim.P. 634
provides: provides:
Rule 634. Number of Peremptory Challenges Rule 634. Number of Peremptory Challenges
(A) Trials Involving Only One Defendant: (A) Trials Involving Only One Defendant:
(1) In trials involving misdemeanors only and when (1) In trials involving misdemeanors only and when
there is only one defendant, the Commonwealth and there is only one defendant, the Commonwealth and
the defendant shall each be entitled to 5 peremptory the defendant shall each be entitled to 5 peremptory
challenges. challenges.
(2) In trials involving a non-capital felony and when (2) In trials involving a non-capital felony and when
there is only one defendant, the Commonwealth and there is only one defendant, the Commonwealth and
the defendant shall each be entitled to 7 peremptory the defendant shall each be entitled to 7 peremptory
(3) In trials involving a capital felony and when there is only (3) In trials involving a capital felony and when there is only
one defendant, the Commonwealth and the defendant one defendant, the Commonwealth and the defendant
shall each be entitled to 20 peremptory challenges. shall each be entitled to 20 peremptory challenges.
(B) Trials Involving Joint Defendants: (B) Trials Involving Joint Defendants:
(1) In trials involving joint defendants, the defendants shall (1) In trials involving joint defendants, the defendants shall
divide equally among them that number of peremptory divide equally among them that number of peremptory
challenges that the defendant charged with the highest challenges that the defendant charged with the highest
grade of offense would have received if tried separately; grade of offense would have received if tried separately;
provided, however, that each defendant shall be entitled provided, however, that each defendant shall be entitled
to at least 2 peremptory challenges. When such division to at least 2 peremptory challenges. When such division
of peremptory challenges among joint defendants results of peremptory challenges among joint defendants results
in a fraction of a peremptory challenge, each defendant in a fraction of a peremptory challenge, each defendant
shall be entitled to the next highest number of such shall be entitled to the next highest number of such
(2) In trials involving joint defendants, it shall be within (2) In trials involving joint defendants, it shall be within
the discretion of the trial judge to increase the number the discretion of the trial judge to increase the number
of peremptory challenges to which each defendant is of peremptory challenges to which each defendant is
entitled up to the number of peremptory challenges that entitled up to the number of peremptory challenges that
each defendant would have received if tried alone. each defendant would have received if tried alone.
(3) In trials involving joint defendants, the Commonwealth (3) In trials involving joint defendants, the Commonwealth
shall be entitled to peremptory challenges equal in number shall be entitled to peremptory challenges equal in number
to the total number of peremptory challenges given to all to the total number of peremptory challenges given to all
of the defendants. of the defendants.
A short summary of Pa.R.Crim.P. 634 is as follows: A short summary of Pa.R.Crim.P. 634 is as follows:
Minimum Minimum
Commonwealths Each Defendants Number of Commonwealths Each Defendants Number of
Number of Type of Peremptory Peremptory Jurors Subject to Number of Type of Peremptory Peremptory Jurors Subject to
Defendants Offense Challenges Challenges Challenges Defendants Offense Challenges Challenges Challenges
1 Misdemeanor 5 5 22 1 Misdemeanor 5 5 22
1 Felony 7 7 26 1 Felony 7 7 26
2 Misdemeanor 6 3 24 2 Misdemeanor 6 3 24
3 Felony 8 4 28 3 Felony 8 4 28
Where a criminal defendant is forced to use a peremptory challenge to excuse Where a criminal defendant is forced to use a peremptory challenge to excuse
a juror who should have been excused for cause and then exhausts his peremptory a juror who should have been excused for cause and then exhausts his peremptory
challenges before the jury is seated, a new trial will be granted. Commonwealth v. challenges before the jury is seated, a new trial will be granted. Commonwealth v.
Blasioli, 685 A.2d 151, 157-158 (Pa. Super. 1996), affd, 552 Pa. 149, 713 A.2d 1117 Blasioli, 685 A.2d 151, 157-158 (Pa. Super. 1996), affd, 552 Pa. 149, 713 A.2d 1117
(1998). (1998).
7.4 TESTIMONY OF COMPLAINANT 7.4 TESTIMONY OF COMPLAINANT
A. No Corroboration Required A. No Corroboration Required
The uncorroborated testimony of the complaining witness is sufficient to The uncorroborated testimony of the complaining witness is sufficient to
convict a defendant of sexual offenses. Commonwealth v. Lyons, 833 A.2d 245, 258 convict a defendant of sexual offenses. Commonwealth v. Lyons, 833 A.2d 245, 258
(Pa. Super. 2003), appeal denied, 583 Pa. 695, 879 A.2d 782 (2005). Similarly, a rape (Pa. Super. 2003), appeal denied, 583 Pa. 695, 879 A.2d 782 (2005). Similarly, a rape
victims uncorroborated testimony to penal penetration is sufficient to establish sexual victims uncorroborated testimony to penal penetration is sufficient to establish sexual
intercourse and therefore support a rape conviction. Commonwealth v. Wall, 953 A.2d intercourse and therefore support a rape conviction. Commonwealth v. Wall, 953 A.2d
581, 584 (Pa. Super. 2008), appeal denied, 600 Pa. 733, 963 A.2d 470 (2008)(While 581, 584 (Pa. Super. 2008), appeal denied, 600 Pa. 733, 963 A.2d 470 (2008)(While
circumstantial medical evidence is thus not necessary, it may be used to prove the circumstantial medical evidence is thus not necessary, it may be used to prove the
element of penetration.).1 In Commonwealth v. Andrulewicz, 911 A.2d 162 (Pa. Super. element of penetration.).1 In Commonwealth v. Andrulewicz, 911 A.2d 162 (Pa. Super.
2006), appeal denied, 592 Pa. 778, 926 A.2d 972 (2007), the Superior Court, quoting 2006), appeal denied, 592 Pa. 778, 926 A.2d 972 (2007), the Superior Court, quoting
Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006), stated [t]his Court Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006), stated [t]his Court
has held hat the uncorroborated testimony of a sexual assault victim, if believed by the has held hat the uncorroborated testimony of a sexual assault victim, if believed by the
trier of fact, is sufficient to convict a defendant .... 911 A.2d at 166. trier of fact, is sufficient to convict a defendant .... 911 A.2d at 166.
18 Pa.Cons.Stat.Ann. 3106 provides: 18 Pa.Cons.Stat.Ann. 3106 provides:
Chapter 31. Sexual Offenses Chapter 31. Sexual Offenses

Subchapter A. General Provisions Subchapter A. General Provisions
3106. Testimony of complainants 3106. Testimony of complainants
chapter shall be determined by the same standard as is the chapter shall be determined by the same standard as is the
1 In an expungement case, the court held that a videotaped, uncorroborated statement of a four year old child was sufficient to constitute 1 In an expungement case, the court held that a videotaped, uncorroborated statement of a four year old child was sufficient to constitute
substantial evidence that the father had abused the child. In re E.A., --- Pa. ---, 82 A.3d 370 (2013). substantial evidence that the father had abused the child. In re E.A., --- Pa. ---, 82 A.3d 370 (2013).
credibility of a complainant of any other crime. The testimony of credibility of a complainant of any other crime. The testimony of
a complainant need not be corroborated in prosecutions under a complainant need not be corroborated in prosecutions under
this chapter. No instructions shall be given cautioning the jury this chapter. No instructions shall be given cautioning the jury
to view the complainants testimony in any other way than that to view the complainants testimony in any other way than that
in which all complainants testimony is viewed. in which all complainants testimony is viewed.
This section parallels 213.6(5) of the Model Penal Code. It is now well established This section parallels 213.6(5) of the Model Penal Code. It is now well established
in Pennsylvania that, in a prosecution for sex offenses, a guilty verdict may rest on the in Pennsylvania that, in a prosecution for sex offenses, a guilty verdict may rest on the
uncorroborated testimony of the victim. Commonwealth v. Castelhun, 889 A.2d 1228, uncorroborated testimony of the victim. Commonwealth v. Castelhun, 889 A.2d 1228,
1232 (Pa. Super. 2005) (absence of physical or forensic proof does not invalidate the 1232 (Pa. Super. 2005) (absence of physical or forensic proof does not invalidate the
testimony of the complaining witness); Commonwealth v. Owens, 649 A.2d 129, 133 testimony of the complaining witness); Commonwealth v. Owens, 649 A.2d 129, 133
(Pa. Super. 1994), appeal denied, 540 Pa. 612, 656 A.2d 118 (1995). (Pa. Super. 1994), appeal denied, 540 Pa. 612, 656 A.2d 118 (1995).
Examples: Examples:
Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa. Super. 1992): testimony of Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa. Super. 1992): testimony of
child victim alone sufficient to support conviction for sex offense. child victim alone sufficient to support conviction for sex offense.
Commonwealth v. Smith, 421 A.2d 693, 694 ((Pa. Super. 1980): Evidence of Commonwealth v. Smith, 421 A.2d 693, 694 ((Pa. Super. 1980): Evidence of
12 year old daughter testifying that her father raped her was sufficient to 12 year old daughter testifying that her father raped her was sufficient to
support the verdict. support the verdict.
Commonwealth v. Jette, 818 A.2d 533, 534 (Pa. Super. 2003), appeal denied, Commonwealth v. Jette, 818 A.2d 533, 534 (Pa. Super. 2003), appeal denied,
574 Pa. 771, 833 A.2d 141 (2003): medical evidence is not required if the 574 Pa. 771, 833 A.2d 141 (2003): medical evidence is not required if the
fact finder believes the victim. fact finder believes the victim.
Commonwealth v. Gabrielson, 536 A.2d 401, 409 (Pa. Super. 1988), appeal Commonwealth v. Gabrielson, 536 A.2d 401, 409 (Pa. Super. 1988), appeal
denied, 518 Pa. 636, 542 A.2d 1365 (1988): the uncorroborated testimony of denied, 518 Pa. 636, 542 A.2d 1365 (1988): the uncorroborated testimony of
rape victim sufficient even in absence of medical examination. rape victim sufficient even in absence of medical examination.
Notwithstanding this rule, a prosecutor may choose to corroborate the victims Notwithstanding this rule, a prosecutor may choose to corroborate the victims
testimony through physical or testimonial evidence. testimony through physical or testimonial evidence.
Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008), appeal denied, Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008), appeal denied,
600 Pa. 733, 963 A.2d 470 (2008): While circumstantial medical evidence is 600 Pa. 733, 963 A.2d 470 (2008): While circumstantial medical evidence is
thus not necessary, it may be used to prove the element of penetration. thus not necessary, it may be used to prove the element of penetration.
In Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225 (2000), the In Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225 (2000), the
examining physician testified that she found no evidence of physical examining physician testified that she found no evidence of physical
trauma to the youthful victims genital or anal areas, however, the trauma to the youthful victims genital or anal areas, however, the
absence of physical trauma did not prove that the abuse didnt occur absence of physical trauma did not prove that the abuse didnt occur
because sufficient time had passed to heal any damage that would because sufficient time had passed to heal any damage that would
have been done prior to the examination. 562 Pa. at 51, 753 A.2d at have been done prior to the examination. 562 Pa. at 51, 753 A.2d at
228. 228.
B. Temporarily Excluding Spectators From Courtroom B. Temporarily Excluding Spectators From Courtroom
The United States Supreme Court has long held that the right of access to criminal The United States Supreme Court has long held that the right of access to criminal
trials plays a significant role in the functioning of the judicial process and the government trials plays a significant role in the functioning of the judicial process and the government
as a whole: as a whole:
Public scrutiny of a criminal trial enhances the quality and Public scrutiny of a criminal trial enhances the quality and
safeguards the integrity of the factfinding process, with benefits safeguards the integrity of the factfinding process, with benefits
to both the defendant and to society as a whole. Moreover, public to both the defendant and to society as a whole. Moreover, public
access to the criminal trial fosters an appearance of fairness, access to the criminal trial fosters an appearance of fairness,
thereby heightening public respect for the judicial process. And thereby heightening public respect for the judicial process. And
in the broadest terms, public access to criminal trials permits in the broadest terms, public access to criminal trials permits
the public to participate in and serve as a check upon the the public to participate in and serve as a check upon the
judicial process-an essential component in our structure of self- judicial process-an essential component in our structure of self-
government. In sum, the institutional value of the open criminal government. In sum, the institutional value of the open criminal
trial is recognized in both logic and experience. trial is recognized in both logic and experience.
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 2619- Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S.Ct. 2613, 2619-
2620, 73 L.Ed.2d 248 (1982). Although this right of access is of constitutional 2620, 73 L.Ed.2d 248 (1982). Although this right of access is of constitutional
stature, it is not absolute. stature, it is not absolute.
1. When Victim testifies to embarrassing or lurid details 1. When Victim testifies to embarrassing or lurid details
When a rape victim testifies to facts that could prove embarrassing When a rape victim testifies to facts that could prove embarrassing
or painful to her, the trial court has authority to place limitations on public or painful to her, the trial court has authority to place limitations on public
access to protect victims from serious embarrassment, trauma or intimidation. access to protect victims from serious embarrassment, trauma or intimidation.
Commonwealth v. Penn, 562 A.2d 833, 836 (Pa. Super. 1989), appeal denied, 527 Commonwealth v. Penn, 562 A.2d 833, 836 (Pa. Super. 1989), appeal denied, 527
Pa. 616, 590 A.2d 756 (1991), cert. denied, 502 U.S. 816, 112 S.Ct. 69, 116 L.Ed.2d Pa. 616, 590 A.2d 756 (1991), cert. denied, 502 U.S. 816, 112 S.Ct. 69, 116 L.Ed.2d
43 (1991). 43 (1991).
Commonwealth v. Smith, 421 A.2d 693, 694 (Pa. Super. 1980): in dicta, Commonwealth v. Smith, 421 A.2d 693, 694 (Pa. Super. 1980): in dicta,
where rape victim testifies to facts which could prove embarrassing or where rape victim testifies to facts which could prove embarrassing or
painful to her, a trial court has authority to exclude spectators from the painful to her, a trial court has authority to exclude spectators from the
trial temporarily. trial temporarily.
Although an accused has a right to a public trial2 as guaranteed in our Although an accused has a right to a public trial2 as guaranteed in our
state and federal constitutions, this right is not without limitation: state and federal constitutions, this right is not without limitation:
It is well-established, for example, that the need to protect It is well-established, for example, that the need to protect
young complaining witnesses in rape cases against young complaining witnesses in rape cases against
embarrassment, harassment and loss of reputation will embarrassment, harassment and loss of reputation will
suffice to invoke the shelter of limited privacy upon suffice to invoke the shelter of limited privacy upon
criminal proceedings. Thus, the closing of the courtroom criminal proceedings. Thus, the closing of the courtroom
to spectators is a frequent and accepted practice when the to spectators is a frequent and accepted practice when the
2 See Article I, 9, Pennsylvania Constitution; Sixth Amendments to the Constitution of the United States; Commonwealth v. Berrigan, 2 See Article I, 9, Pennsylvania Constitution; Sixth Amendments to the Constitution of the United States; Commonwealth v. Berrigan,
509 Pa. 118, 129, 501 A.2d 226, 232 (1985). 509 Pa. 118, 129, 501 A.2d 226, 232 (1985).
lurid details of such a crime (rape) must be related by a lurid details of such a crime (rape) must be related by a
young lady. young lady.
Commonwealth v. Stevens, 352 A.2d 509, 514 (Pa. Super. 1975). Where, as in Commonwealth v. Stevens, 352 A.2d 509, 514 (Pa. Super. 1975). Where, as in
case when a child victim must testify to embarrassing or lurid details, the State case when a child victim must testify to embarrassing or lurid details, the State
attempts to deny the right of access in order to inhibit the disclosure of sensitive attempts to deny the right of access in order to inhibit the disclosure of sensitive
information, it must be shown that the denial is necessitated by a compelling information, it must be shown that the denial is necessitated by a compelling
governmental interest, and is narrowly tailored to serve that interest. Press- governmental interest, and is narrowly tailored to serve that interest. Press-
Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510, 104 Enterprise Co. v. Superior Court (Press-Enterprise I), 464 U.S. 501, 510, 104
S.Ct. 819, 78 L.Ed.2d 629 (1984). S.Ct. 819, 78 L.Ed.2d 629 (1984).
In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613,
73 L.Ed.2d 248 (1982), the Massachusetts statute provided for the exclusion of 73 L.Ed.2d 248 (1982), the Massachusetts statute provided for the exclusion of
the press and general public when a minor victim of certain sex offenses testified. the press and general public when a minor victim of certain sex offenses testified.
The press challenged the exclusion. The United States Supreme Court found that The press challenged the exclusion. The United States Supreme Court found that
mandatory closure violated the First Amendment. Id., 457 U.S. at 601, 102 S.Ct. mandatory closure violated the First Amendment. Id., 457 U.S. at 601, 102 S.Ct.
at 2617. The Supreme Court stated that there should be a case-by-case review at 2617. The Supreme Court stated that there should be a case-by-case review
because circumstances of the particular case may affect the significance of the because circumstances of the particular case may affect the significance of the
interest. Id., 457 U.S. at 608, 102 S.Ct. at 2621. interest. Id., 457 U.S. at 608, 102 S.Ct. at 2621.
2. When there are threats of violence to victim or witnesses 2. When there are threats of violence to victim or witnesses
In Commonwealth v. Wright, 388 A.2d 1084, 1086 (Pa. Super. 1978), In Commonwealth v. Wright, 388 A.2d 1084, 1086 (Pa. Super. 1978),
which involved a prosecution for rape, the Court held: Among the circumstances which involved a prosecution for rape, the Court held: Among the circumstances
which justify the court in closing the courtroom to spectators are threats of which justify the court in closing the courtroom to spectators are threats of
violence to witnesses, and the embarrassment and discomfiture to victims of violence to witnesses, and the embarrassment and discomfiture to victims of
crimes which require the explication of lurid details. crimes which require the explication of lurid details.
But in Pressley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d But in Pressley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d
675 (2010) and Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 675 (2010) and Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81
L.Ed.2d 31 (1984), a four prong test for closure was established: L.Ed.2d 31 (1984), a four prong test for closure was established:
(1) The party seeking to close hearing must advance an overriding (1) The party seeking to close hearing must advance an overriding
interest that is likely to be prejudiced (2) The closure must be no interest that is likely to be prejudiced (2) The closure must be no
broader than necessary to protect that interest (3) The trial court broader than necessary to protect that interest (3) The trial court
must consider reasonable alternatives to closure and (4) The trial must consider reasonable alternatives to closure and (4) The trial
court must make findings adequate to support the closure. court must make findings adequate to support the closure.
C. Competency of Minor Complainant or Witness C. Competency of Minor Complainant or Witness
1. Minor victim or witness 1. Minor victim or witness
The determination of the competency of victims or witnesses is left to the The determination of the competency of victims or witnesses is left to the
sound discretion of the trial judge and will not be reversed absent a clear abuse sound discretion of the trial judge and will not be reversed absent a clear abuse
of discretion. Commonwealth v. Judd, 897 A.2d 1224, 1228 (Pa. Super. 2006), of discretion. Commonwealth v. Judd, 897 A.2d 1224, 1228 (Pa. Super. 2006),
The test for competency of a minor witness or victim has been well The test for competency of a minor witness or victim has been well
established: established:
Every witness is presumed competent. A party who Every witness is presumed competent. A party who
challenges the competency of a minor witness must prove challenges the competency of a minor witness must prove
by clear and convincing evidence that the witness lacks by clear and convincing evidence that the witness lacks
the minimal capacity ... (1) to communicate, (2) to observe the minimal capacity ... (1) to communicate, (2) to observe
an event and accurately recall that observation, and (3) to an event and accurately recall that observation, and (3) to
understand the necessity to speak the truth. understand the necessity to speak the truth.
Commonwealth v. Page, 59 A.3d 1118, 1129 (Pa. Super. 2013), appeal denied, Commonwealth v. Page, 59 A.3d 1118, 1129 (Pa. Super. 2013), appeal denied,
--- Pa. ---, 80 A.3d 776 (2013). --- Pa. ---, 80 A.3d 776 (2013).
Furthermore, [a] childs competency to testify is a threshold legal Furthermore, [a] childs competency to testify is a threshold legal
issue that a trial court must decide, and an appellate court will not disturb its issue that a trial court must decide, and an appellate court will not disturb its
determination absent an abuse of discretion. Commonwealth v. Washington, determination absent an abuse of discretion. Commonwealth v. Washington,
554 Pa. 559, 563, 722 A.2d 643, 646 (1998) (citation omitted & emphasis added). 554 Pa. 559, 563, 722 A.2d 643, 646 (1998) (citation omitted & emphasis added).
However, when a victim or witness is fourteen years of age or older, he or she However, when a victim or witness is fourteen years of age or older, he or she
is entitled to the same presumption of competence as an adult. Commonwealth is entitled to the same presumption of competence as an adult. Commonwealth
v. Pena, 31 A.3d 704, 707 (Pa.Super. 2011). v. Pena, 31 A.3d 704, 707 (Pa.Super. 2011).
See Section 7.13(C), Competency of Child, infra, for additional discussion. See Section 7.13(C), Competency of Child, infra, for additional discussion.
2. Contention of Taint3 2. Contention of Taint3
The Pennsylvania Supreme Court has defined taint as the implantation The Pennsylvania Supreme Court has defined taint as the implantation
of false memories or distortion of actual memories through improper and of false memories or distortion of actual memories through improper and
suggestive interview techniques . . . . Commonwealth v. Delbridge (Delbridge suggestive interview techniques . . . . Commonwealth v. Delbridge (Delbridge
I), 578 Pa. 641, 647, 855 A.2d 27, 30 (2003). An allegation of taint is a legitimate I), 578 Pa. 641, 647, 855 A.2d 27, 30 (2003). An allegation of taint is a legitimate
question for examination in cases involving complaints of sexual abuse made by question for examination in cases involving complaints of sexual abuse made by
young children. Id., 578 Pa. at 661, 855 A.2d at 39.4 young children. Id., 578 Pa. at 661, 855 A.2d at 39.4
Within the three-part test for competency described above in Within the three-part test for competency described above in
Commonwealth v. Page, an allegation of taint speaks to the second prong: whether Commonwealth v. Page, an allegation of taint speaks to the second prong: whether
the child witness has the minimal capacity to observe an occurrence itself and the child witness has the minimal capacity to observe an occurrence itself and
the capacity of remembering what it is that the witness is called upon to testify the capacity of remembering what it is that the witness is called upon to testify
about. See Commonwealth v. Pena, 31 A.3d 704, 707 (Pa. Super. 2011). The about. See Commonwealth v. Pena, 31 A.3d 704, 707 (Pa. Super. 2011). The
challenge must be supported by clear and convincing evidence. Commonwealth challenge must be supported by clear and convincing evidence. Commonwealth
v. Lukowich, 875 A.2d 1169, 1173 (Pa. Super. 2005), appeal denied, 584 Pa. 706, v. Lukowich, 875 A.2d 1169, 1173 (Pa. Super. 2005), appeal denied, 584 Pa. 706,
885 A.2d 41 (2005). 885 A.2d 41 (2005).
3 For additional discussion on Taint, see Chapter 5, Section 5.12, Taint. 3 For additional discussion on Taint, see Chapter 5, Section 5.12, Taint.
4 In Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006), appeal denied, 590 Pa. 675, 912 A.2d 1291 (2006), the court held 4 In Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa. Super. 2006), appeal denied, 590 Pa. 675, 912 A.2d 1291 (2006), the court held
that a sexual abuse victim of fifteen years of age could not be the subject of an allegation of taint but rather any attack on her testimony that a sexual abuse victim of fifteen years of age could not be the subject of an allegation of taint but rather any attack on her testimony
went to questions of credibility. 897 A.2d at 1229. went to questions of credibility. 897 A.2d at 1229.
Where an allegation of taint is made before trial the appropriate venue Where an allegation of taint is made before trial the appropriate venue
for investigation into such a claim is a competency hearing. In order to trigger an for investigation into such a claim is a competency hearing. In order to trigger an
investigation of competency on the issue of taint, the moving party must show investigation of competency on the issue of taint, the moving party must show
some evidence of taint. Once some evidence of taint is presented, the competency some evidence of taint. Once some evidence of taint is presented, the competency
hearing must be expanded to explore this specific question. During the hearing hearing must be expanded to explore this specific question. During the hearing
the party alleging taint bears the burden of production of evidence of taint the party alleging taint bears the burden of production of evidence of taint
and the burden of persuasion to show taint by clear and convincing evidence. and the burden of persuasion to show taint by clear and convincing evidence.
Pennsylvania has always maintained that since competency is the presumption, Pennsylvania has always maintained that since competency is the presumption,
the moving party must carry the burden of overcoming that presumption the moving party must carry the burden of overcoming that presumption
[A]s with all questions of competency, the resolution of a taint challenge to the [A]s with all questions of competency, the resolution of a taint challenge to the
competency of a child witness is a matter addressed to the discretion of the trial competency of a child witness is a matter addressed to the discretion of the trial
court. Delbridge I, 578 Pa. at 664, 855 A.2d at 40-41. court. Delbridge I, 578 Pa. at 664, 855 A.2d at 40-41.
Areas of review concern the competency of the minor victim versus the Areas of review concern the competency of the minor victim versus the
credibility of the witness: credibility of the witness:
The core belief underlying the theory of taint is that a The core belief underlying the theory of taint is that a
childs memory is peculiarly susceptible to suggestibility childs memory is peculiarly susceptible to suggestibility
so that when called to testify a child may have difficulty so that when called to testify a child may have difficulty
distinguishing fact from fantasy. Taint is the implantation distinguishing fact from fantasy. Taint is the implantation
of false memories or the distortion of real memories caused of false memories or the distortion of real memories caused
by interview techniques of law enforcement, social service by interview techniques of law enforcement, social service
personnel, and other interested adults, that are so unduly personnel, and other interested adults, that are so unduly
suggestive and coercive as to infect the memory of the child, suggestive and coercive as to infect the memory of the child,
rendering that child incompetent to testify. rendering that child incompetent to testify.
Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012), appeal Commonwealth v. McLaurin, 45 A.3d 1131, 1139 (Pa. Super. 2012), appeal
denied, --- Pa. ---, 65 A.3d 413 (2013), quoting Commonwealth v. Moore, 980 denied, --- Pa. ---, 65 A.3d 413 (2013), quoting Commonwealth v. Moore, 980
In Commonwealth v. Davis, 939 A.2d 905 (Pa. Super. 2007), the Superior In Commonwealth v. Davis, 939 A.2d 905 (Pa. Super. 2007), the Superior
Court affirmed the trial courts decision, after a competency hearing, that the Court affirmed the trial courts decision, after a competency hearing, that the
youthful victim lacked the minimal capacity to testify, especially in light of youthful victim lacked the minimal capacity to testify, especially in light of
the taint effect produced by leading and suggestive questioning by the police. the taint effect produced by leading and suggestive questioning by the police.
Specifically, the Superior Court found: Specifically, the Superior Court found:
The problems with the testimony are twofold: first, J.D.s The problems with the testimony are twofold: first, J.D.s
independent recollection of the incident was extremely independent recollection of the incident was extremely
limited; and second, the suggestive technique and content limited; and second, the suggestive technique and content
of the interviews provided clear and convincing evidence of the interviews provided clear and convincing evidence
that J.D.s later recollections were tainted and a product of that J.D.s later recollections were tainted and a product of
coercion, not of his own memory. coercion, not of his own memory.
939 A.2d at 910. 939 A.2d at 910.
In Commonwealth v. Moore, 980 A.2d 647 (Pa. Super. 2009), some of In Commonwealth v. Moore, 980 A.2d 647 (Pa. Super. 2009), some of
the factors deemed relevant include the age of the child, whether the child has the factors deemed relevant include the age of the child, whether the child has
been subject to repeated interviews by adults in positions of authority, and the been subject to repeated interviews by adults in positions of authority, and the
existence of independent evidence regarding the interview techniques utilized. existence of independent evidence regarding the interview techniques utilized.
980 A.2d at 652. 980 A.2d at 652.
D. Impeachment of Complainant D. Impeachment of Complainant
1. Truth and veracity 1. Truth and veracity
Evidence of victims reputation in community for truth and veracity is Evidence of victims reputation in community for truth and veracity is
admissible in a sex offense trial. The credibility of a rape victim is measured admissible in a sex offense trial. The credibility of a rape victim is measured
according to the same standard applied to any other crime victim: the reputation according to the same standard applied to any other crime victim: the reputation
witness must attest to the victims general reputation in the community the witness must attest to the victims general reputation in the community the
witness may not attest to the victims specific behavior.5 witness may not attest to the victims specific behavior.5
In In Interest of Lawrence J., 456 A.2d 647 (Pa. Super. 1983), the trial In In Interest of Lawrence J., 456 A.2d 647 (Pa. Super. 1983), the trial
court erred under 18 Pa.Cons.Stat.Ann. 3106 in sustaining the Commonwealths court erred under 18 Pa.Cons.Stat.Ann. 3106 in sustaining the Commonwealths
objections to the testimony by a defense witness concerning the victims objections to the testimony by a defense witness concerning the victims
reputation for truth and veracity. The credibility of the alleged rape victim was reputation for truth and veracity. The credibility of the alleged rape victim was
to be determined by the same standard as that applied to the victim of any other to be determined by the same standard as that applied to the victim of any other
crime: The inquiry is limited, however, to the general speech of the community crime: The inquiry is limited, however, to the general speech of the community
on the subject. The reputation witness can not be asked questions or give on the subject. The reputation witness can not be asked questions or give
answers regarding specific acts, as distinguished from what she has heard in the answers regarding specific acts, as distinguished from what she has heard in the
neighborhood. 456 A.2d at 655. neighborhood. 456 A.2d at 655.
Section 3106 of the Crimes Code provides: Section 3106 of the Crimes Code provides:

3106. Testimony of complainants 3106. Testimony of complainants
chapter shall be determined by the same standard as is chapter shall be determined by the same standard as is
the credibility of a complainant of any other crime. The the credibility of a complainant of any other crime. The
testimony of a complainant need not be corroborated testimony of a complainant need not be corroborated
in prosecutions under this chapter. No instructions shall in prosecutions under this chapter. No instructions shall
be given cautioning the jury to view the complainants be given cautioning the jury to view the complainants
testimony in any other way than that in which all testimony in any other way than that in which all
complainants testimony is viewed. complainants testimony is viewed.
5 Commonwealth v. Berry, 513 A.2d 410, 416 (Pa. Super. 1986); Commonwealth v. Butler, 621 A.2d 630 (Pa.Super. 1993), appeal denied, 5 Commonwealth v. Berry, 513 A.2d 410, 416 (Pa. Super. 1986); Commonwealth v. Butler, 621 A.2d 630 (Pa.Super. 1993), appeal denied,
535 Pa. 613, 629 A.2d 1376 (1993); see also Pa.R.E. 404(a)(2)(B); Pa.R.E. 608. 535 Pa. 613, 629 A.2d 1376 (1993); see also Pa.R.E. 404(a)(2)(B); Pa.R.E. 608.
2. Complainants prior sexual conduct 2. Complainants prior sexual conduct
The admission of evidence of a complainants prior sexual conduct may be The admission of evidence of a complainants prior sexual conduct may be
necessary to preserve the accuseds constitutional confrontation clause rights. In necessary to preserve the accuseds constitutional confrontation clause rights. In
the context of a case of sexual violence, however, the purpose of the Rape Shield the context of a case of sexual violence, however, the purpose of the Rape Shield
Law is to prevent a trial from shifting its focus from the culpability of the accused Law is to prevent a trial from shifting its focus from the culpability of the accused
toward the virtue and chastity of the victim. 18 Pa.Cons.Stat.Ann. 3104.6 toward the virtue and chastity of the victim. 18 Pa.Cons.Stat.Ann. 3104.6
The law is well settled that the Rape Shield Law is a bar to admission of The law is well settled that the Rape Shield Law is a bar to admission of
testimony of prior sexual conduct involving a victim, whether it is consensual or testimony of prior sexual conduct involving a victim, whether it is consensual or
the result of nonconsensual or assaultive behavior, unless it has probative value the result of nonconsensual or assaultive behavior, unless it has probative value
which is exculpatory to the defendant. Under such circumstances, the trial court in which is exculpatory to the defendant. Under such circumstances, the trial court in
an in-camera hearing will carefully weigh the evidence, and in his/her discretion an in-camera hearing will carefully weigh the evidence, and in his/her discretion
make a determination as to the admissibility of that evidence. Commonwealth make a determination as to the admissibility of that evidence. Commonwealth
v. Fink, 791 A.2d 1235, 1241-1242 (Pa. Super. 2002); 18 Pa.Cons.Stat.Ann. v. Fink, 791 A.2d 1235, 1241-1242 (Pa. Super. 2002); 18 Pa.Cons.Stat.Ann.
3104(b). The trial court must determine whether (1) the proposed evidence is 3104(b). The trial court must determine whether (1) the proposed evidence is
relevant to show bias or motive or to attack credibility; (2) whether the probative relevant to show bias or motive or to attack credibility; (2) whether the probative
value outweighs its prejudicial effect; and (3) whether there are alternative value outweighs its prejudicial effect; and (3) whether there are alternative
means of proving bias or motive or to challenge credibility. Fink, 791 A.2d at means of proving bias or motive or to challenge credibility. Fink, 791 A.2d at
1241-1242 . In the absence of an abuse of discretion, that decision will stand on 1241-1242 . In the absence of an abuse of discretion, that decision will stand on
appeal. Commonwealth v. Allburn, 721 A.2d 363, 366 (Pa. Super. 1998). appeal. Commonwealth v. Allburn, 721 A.2d 363, 366 (Pa. Super. 1998).
In Commonwealth v. Spiewak, 533 Pa. 1, 617 A.2d 696 (1992), the In Commonwealth v. Spiewak, 533 Pa. 1, 617 A.2d 696 (1992), the
Pennsylvania Supreme Court held that evidence of a complainants prior sexual Pennsylvania Supreme Court held that evidence of a complainants prior sexual
history is admissible if it is highly probative of the victims credibility and is history is admissible if it is highly probative of the victims credibility and is
necessary to allow the jury to make a fair determination of guilt or innocence. necessary to allow the jury to make a fair determination of guilt or innocence.
Id. at 13, 617 A.2d at 702. Of course, proffers which relate to alleged prior sexual Id. at 13, 617 A.2d at 702. Of course, proffers which relate to alleged prior sexual
conduct of the complainant trigger an inquiry into the applicability of the Rape conduct of the complainant trigger an inquiry into the applicability of the Rape
Shield Law, 18 Pa.Cons.Stat.Ann. 3104. The Rape Shield Law prohibits the Shield Law, 18 Pa.Cons.Stat.Ann. 3104. The Rape Shield Law prohibits the
introduction of evidence relating to the victims sexual history, including conduct introduction of evidence relating to the victims sexual history, including conduct
and reputation, and states: and reputation, and states:
General rule.--Evidence of specific instances of the General rule.--Evidence of specific instances of the
evidence of the alleged victims past sexual conduct evidence of the alleged victims past sexual conduct
shall not be admissible in prosecutions under this shall not be admissible in prosecutions under this
chapter except evidence of the alleged victims past chapter except evidence of the alleged victims past
sexual conduct with the defendant where consent of the sexual conduct with the defendant where consent of the
alleged victim is at issue and such evidence is otherwise alleged victim is at issue and such evidence is otherwise
6 For a detailed discussion of the substantive and procedural requirements of the Pennsylvania Rape Shield Law, see Chapter 6, 6.8 6 For a detailed discussion of the substantive and procedural requirements of the Pennsylvania Rape Shield Law, see Chapter 6, 6.8
EVIDENCE OF VICTIMS PAST SEXUAL CONDUCT. EVIDENCE OF VICTIMS PAST SEXUAL CONDUCT.
18 Pa.Cons.Stat.Ann. 3104(a). However, as stated above, our Supreme 18 Pa.Cons.Stat.Ann. 3104(a). However, as stated above, our Supreme
Court has addressed the type of evidence that is admissible albeit the prohibition Court has addressed the type of evidence that is admissible albeit the prohibition
of the Rape Shield Law. of the Rape Shield Law.
In Spiewak, the defendant sought to impeach the credibility of the minor In Spiewak, the defendant sought to impeach the credibility of the minor
victim by cross-examining her about an earlier incident in which she testified victim by cross-examining her about an earlier incident in which she testified
that that an older man who was a friend of the defendants had seduced her. The that that an older man who was a friend of the defendants had seduced her. The
relevancy to credibility was that this prior testimony describing the encounter relevancy to credibility was that this prior testimony describing the encounter
was substantially similar to the description of the encounter with the defendant was substantially similar to the description of the encounter with the defendant
to which the victim had testified. The Supreme Court reversed the trial courts to which the victim had testified. The Supreme Court reversed the trial courts
ruling that the Rape Shield Law precluded such a line of questioning. The Court ruling that the Rape Shield Law precluded such a line of questioning. The Court
reasoned that the Rape Shield Law does not prohibit the admission of relevant reasoned that the Rape Shield Law does not prohibit the admission of relevant
evidence which may exculpate a defendant of the crime with which he is charged. evidence which may exculpate a defendant of the crime with which he is charged.
Further, using a balancing test, the Rape Shield Law must yield to a defendants Further, using a balancing test, the Rape Shield Law must yield to a defendants
constitutional right to challenge the credibility of a witness and present evidence constitutional right to challenge the credibility of a witness and present evidence
necessary to permit or allow a jury to make a fair determination of the defendants necessary to permit or allow a jury to make a fair determination of the defendants
guilt or innocence. Id., 533 Pa. at 7-10, 617 A.2d at 699702. guilt or innocence. Id., 533 Pa. at 7-10, 617 A.2d at 699702.
In Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985), the Superior In Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985), the Superior
Court permitted admission of evidence of the victims prior sexual activity, i.e., Court permitted admission of evidence of the victims prior sexual activity, i.e.,
evidence of her prior sexual conduct with one of her brothers, on the issue of evidence of her prior sexual conduct with one of her brothers, on the issue of
her bias against the defendant, provided that a three-part test was met at an her bias against the defendant, provided that a three-part test was met at an
in camera hearing similar to that outlined in 18 Pa.Cons.Stat.Ann. 3104(b). in camera hearing similar to that outlined in 18 Pa.Cons.Stat.Ann. 3104(b).
The theory of bias was based on the argument that the victim wanted the father The theory of bias was based on the argument that the victim wanted the father
removed from the house so that she could reunite with her brother. The Superior removed from the house so that she could reunite with her brother. The Superior
Court referred to the Confrontation Clause under the Sixth Amendment of the Court referred to the Confrontation Clause under the Sixth Amendment of the
United States Constitution in holding that the Rape Shield Law can not be used United States Constitution in holding that the Rape Shield Law can not be used
to exclude relevant evidence that shows the bias of a witness or attacks the to exclude relevant evidence that shows the bias of a witness or attacks the
credibility of the witness. Thus, relevant evidence of such past sexual conduct credibility of the witness. Thus, relevant evidence of such past sexual conduct
would be admissible as long as it would not so inflame the minds of the jurors would be admissible as long as it would not so inflame the minds of the jurors
that its probative value is outweighed by unfair prejudice. Id. at 401. that its probative value is outweighed by unfair prejudice. Id. at 401.
In Commonwealth v. Fernsler, 715 A.2d 435 (Pa. Super. 1998), the In Commonwealth v. Fernsler, 715 A.2d 435 (Pa. Super. 1998), the
defendant filed a Motion in Limine to question the child victim about his prior defendant filed a Motion in Limine to question the child victim about his prior
sexual activity, specifically his disclosure of previous assault he made upon his sexual activity, specifically his disclosure of previous assault he made upon his
half-sister. The trial court granted the motion. The Superior Court affirmed and half-sister. The trial court granted the motion. The Superior Court affirmed and
again held that the Rape Shield Law, if rigidly construed, could impermissibly again held that the Rape Shield Law, if rigidly construed, could impermissibly
encroach upon defendants right to confront and cross-examine witnesses; encroach upon defendants right to confront and cross-examine witnesses;
in those cases, Rape Shield Law must bow to the need to permit accused an in those cases, Rape Shield Law must bow to the need to permit accused an
opportunity to present genuinely exculpatory evidence. Id. at 442. opportunity to present genuinely exculpatory evidence. Id. at 442.
The proffer must be specific and highly probative to issues of credibility. The proffer must be specific and highly probative to issues of credibility.
The requirement of a specific proffer of evidence was designed to prevent a fishing The requirement of a specific proffer of evidence was designed to prevent a fishing
expedition into the areas protected by the Rape Shield Law. Commonwealth v. expedition into the areas protected by the Rape Shield Law. Commonwealth v.
Burns, 988 A.2d 684, 691 (Pa. Super. 2009), appeal denied, 608 Pa. 615, 8 A.3d Burns, 988 A.2d 684, 691 (Pa. Super. 2009), appeal denied, 608 Pa. 615, 8 A.3d
341 (2010). 341 (2010).
The Rape Shield Law may not be used to exclude relevant evidence The Rape Shield Law may not be used to exclude relevant evidence
showing a witness bias or attacking credibility, and evidence that may tend to showing a witness bias or attacking credibility, and evidence that may tend to
directly exculpate the accused by showing that the alleged victim is biased and directly exculpate the accused by showing that the alleged victim is biased and
thus has a motive to lie or fabricate is admissible at trial. Commonwealth v. thus has a motive to lie or fabricate is admissible at trial. Commonwealth v.
Guy, 686 A.2d 397, 401 (1996). In Guy, the evidence of the victims prior sexual Guy, 686 A.2d 397, 401 (1996). In Guy, the evidence of the victims prior sexual
conduct was not relevant to any allegation of bias or motive, rather was for the conduct was not relevant to any allegation of bias or motive, rather was for the
only purpose of showing conformity to past conduct; as such, the Superior Court only purpose of showing conformity to past conduct; as such, the Superior Court
held that it was not admissible. Id. at 402. See also, Commonwealth v. Holder, held that it was not admissible. Id. at 402. See also, Commonwealth v. Holder,
815 A.2d 1115 (Pa.Super. 2003), appeal denied, 573 Pa. 703, 827 A.2d 430 (2003) 815 A.2d 1115 (Pa.Super. 2003), appeal denied, 573 Pa. 703, 827 A.2d 430 (2003)
(allegation of rape that victim had made against another man was collateral and (allegation of rape that victim had made against another man was collateral and
not relevant for impeachment purposes in rape trial against defendant). not relevant for impeachment purposes in rape trial against defendant).
For additional detailed discussion about possible federal habeas corpus For additional detailed discussion about possible federal habeas corpus
review, as well as prior false accusations of sexual abuse by a complainant, review, as well as prior false accusations of sexual abuse by a complainant,
please see Chapter 5, 5.5 IMPEACHMENT OF COMPLAINANT, subsections B please see Chapter 5, 5.5 IMPEACHMENT OF COMPLAINANT, subsections B
(Confrontation Clause challenges) and C (Impeachment based upon prior false (Confrontation Clause challenges) and C (Impeachment based upon prior false
accusations). accusations).
E. Cross-examination of Complainant by Pro Se Defendant E. Cross-examination of Complainant by Pro Se Defendant
It is extremely well-settled that the Sixth Amendment implicitly provides an It is extremely well-settled that the Sixth Amendment implicitly provides an
affirmative right to self-representation. See Faretta v. California, 422 U.S. 806, 819, affirmative right to self-representation. See Faretta v. California, 422 U.S. 806, 819,
95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975) (The Sixth Amendment does not provide 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975) (The Sixth Amendment does not provide
merely that a defense shall be made for the accused; it grants to the accused personally merely that a defense shall be made for the accused; it grants to the accused personally
the right to make his defense.). The United States Supreme Court clearly stated: the right to make his defense.). The United States Supreme Court clearly stated:
Although not stated in the Amendment in so many words, the right Although not stated in the Amendment in so many words, the right
to self-representationto make ones own defense personally to self-representationto make ones own defense personally
is thus necessarily implied by the structure of the Amendment. is thus necessarily implied by the structure of the Amendment.
The right to defend is given directly to the accused; for it is he The right to defend is given directly to the accused; for it is he
who suffers the consequences if the defense fails. who suffers the consequences if the defense fails.
Faretta, 422 U.S. at 819-820, 95 S.Ct. at 2533 (footnote omitted). However, the waiver Faretta, 422 U.S. at 819-820, 95 S.Ct. at 2533 (footnote omitted). However, the waiver
of the right to counsel must be made knowingly and intelligently. No specific form or of the right to counsel must be made knowingly and intelligently. No specific form or
magic words are necessary, only that there be a knowing and voluntary choice to proceed magic words are necessary, only that there be a knowing and voluntary choice to proceed
pro se. The information a defendant must possess in order to make an intelligent pro se. The information a defendant must possess in order to make an intelligent
election, our decisions indicate, will depend on a range of case-specific factors, including election, our decisions indicate, will depend on a range of case-specific factors, including
the defendants education or sophistication, the complex or easily grasped nature of the the defendants education or sophistication, the complex or easily grasped nature of the
charge, and the stage of the proceeding. Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, charge, and the stage of the proceeding. Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379,
158 L.Ed.2d 209 (2004). 158 L.Ed.2d 209 (2004).
An issue that has recently appeared is when a pro se defendant in a sexual assault An issue that has recently appeared is when a pro se defendant in a sexual assault
case wishes to cross-examine the victim. The issue becomes much more sensitive when case wishes to cross-examine the victim. The issue becomes much more sensitive when
the complainant is a child. the complainant is a child.
In Fields v. Murray, 49 F.3d 1024 (4th Cir. 1995)(en banc), cert. denied, 516 U.S. In Fields v. Murray, 49 F.3d 1024 (4th Cir. 1995)(en banc), cert. denied, 516 U.S.
884, 116 S.Ct. 224, 133 L.Ed. 2d 154 (1995), the Fourth Circuit Court of Appeals affirmed 884, 116 S.Ct. 224, 133 L.Ed. 2d 154 (1995), the Fourth Circuit Court of Appeals affirmed
a District Courts decision to bar a pro se defendant from cross-examining the child a District Courts decision to bar a pro se defendant from cross-examining the child
victims of sexual abuse. As an alternative reason to affirm the District Courts decision, victims of sexual abuse. As an alternative reason to affirm the District Courts decision,
the Fourth Circuit, sitting en banc, held that even if a defendant charged with sexual abuse the Fourth Circuit, sitting en banc, held that even if a defendant charged with sexual abuse
properly invoked his right to self-representation, the trial court did not err in refusing properly invoked his right to self-representation, the trial court did not err in refusing
to allow him the personal right to cross-examine the alleged victims. Id. at 1034-36. The to allow him the personal right to cross-examine the alleged victims. Id. at 1034-36. The
trial court offered the defendant the opportunity to submit cross-examination questions trial court offered the defendant the opportunity to submit cross-examination questions
to his standby counsel to pose. The Fourth Circuit specifically found: to his standby counsel to pose. The Fourth Circuit specifically found:
That the purposes of self-representation to allow a defendant to That the purposes of self-representation to allow a defendant to
affirm his dignity and autonomy and to present what he believes affirm his dignity and autonomy and to present what he believes
is his best possible defense were thus otherwise assured is his best possible defense were thus otherwise assured
and that, therefore, the important state interest in protecting and that, therefore, the important state interest in protecting
children from the emotional trauma of being questioned by their children from the emotional trauma of being questioned by their
alleged abuser outweighed the defendants right to conduct cross alleged abuser outweighed the defendants right to conduct cross
examination personally. examination personally.
U.S. v. Singleton, 107 F.3d 1091, 1097 n. 1 (4th Cir. 1997), cert. denied, 522 U.S. 825, 118 U.S. v. Singleton, 107 F.3d 1091, 1097 n. 1 (4th Cir. 1997), cert. denied, 522 U.S. 825, 118
S.Ct. 84, 139 L.Ed.2d 41 (1997). S.Ct. 84, 139 L.Ed.2d 41 (1997).
In Partin v. Commonwealth, 168 S.W. 3d 23 (Ky. 2005), cert. denied, 547 U.S. In Partin v. Commonwealth, 168 S.W. 3d 23 (Ky. 2005), cert. denied, 547 U.S.
1005, 126 S.Ct. 1467, 164 L.Ed.2d 251 (2006), the Supreme Court of Kentucky affirmed 1005, 126 S.Ct. 1467, 164 L.Ed.2d 251 (2006), the Supreme Court of Kentucky affirmed
the trial courts decision to require standby counsel to cross-examine the victims, his the trial courts decision to require standby counsel to cross-examine the victims, his
wife and her adult son, rather than the pro-se defendant, and that this restriction did not wife and her adult son, rather than the pro-se defendant, and that this restriction did not
violate the defendants federal or state constitutional rights. violate the defendants federal or state constitutional rights.
There are no Pennsylvania appellate court cases addressing this issue yet, nor any There are no Pennsylvania appellate court cases addressing this issue yet, nor any
District Court or Third Circuit Court cases. See Joseph G. Cook, Constitutional Rights of District Court or Third Circuit Court cases. See Joseph G. Cook, Constitutional Rights of
the Accused (3rd ed.1996), Vol. 3, 9:2 & 23. the Accused (3rd ed.1996), Vol. 3, 9:2 & 23.
F. Expert Testimony Victim Responses and Behaviors F. Expert Testimony Victim Responses and Behaviors
Effective August 28, 2012, the Legislature adopted 42 Pa.Cons.Stat.Ann. 5920, Effective August 28, 2012, the Legislature adopted 42 Pa.Cons.Stat.Ann. 5920,
which provides that properly qualified experts can testify as to facts and opinions which provides that properly qualified experts can testify as to facts and opinions
regarding specific types of victim responses and behaviors in crimes of sexual violence. regarding specific types of victim responses and behaviors in crimes of sexual violence.
With the passage of 42 Pa.Cons.Stat.Ann. 5920, in the prosecutions case-in- With the passage of 42 Pa.Cons.Stat.Ann. 5920, in the prosecutions case-in-
chief, experts will be able to testify about specific types of victim responses and victim chief, experts will be able to testify about specific types of victim responses and victim
behaviors in sexual assault cases, although they still will not be permitted to testify as to behaviors in sexual assault cases, although they still will not be permitted to testify as to
a particular victims or witnesss credibility. This law is not restricted to the prosecutions a particular victims or witnesss credibility. This law is not restricted to the prosecutions
case, however, and the defense has an equal opportunity to qualify an expert under this case, however, and the defense has an equal opportunity to qualify an expert under this
law, and present similar testimony on the defense side about the victim responses and law, and present similar testimony on the defense side about the victim responses and
behaviors. behaviors.
Although this law is available to both the Commonwealth and the defense, it was Although this law is available to both the Commonwealth and the defense, it was
originally adopted to address a jury perception problem when a victim responds to a originally adopted to address a jury perception problem when a victim responds to a
sexual assault in a way which runs contrary to that which a typical juror would expect. sexual assault in a way which runs contrary to that which a typical juror would expect.
Section 5920 provides that properly qualified experts can testify as to facts and opinions Section 5920 provides that properly qualified experts can testify as to facts and opinions
regarding specific types of victim responses and behaviors in crimes of sexual violence, regarding specific types of victim responses and behaviors in crimes of sexual violence,
in order to explain a reaction or response, which might seem unusual or strange to a in order to explain a reaction or response, which might seem unusual or strange to a
juror, and therefore create credibility issues. juror, and therefore create credibility issues.
This section provides: This section provides:
42 Pa.Cons.stat.ann. 5920. 42 Pa.Cons.stat.ann. 5920.

Expert testimony in certain criminal proceedings Expert testimony in certain criminal proceedings
(a) Scope.--This section applies to all of the following: (a) Scope.--This section applies to all of the following:
(1) A criminal proceeding for an offense for which (1) A criminal proceeding for an offense for which
registration is required under Subchapter H of Chapter registration is required under Subchapter H of Chapter
97 (relating to registration of sexual offenders). 97 (relating to registration of sexual offenders).
(2) A criminal proceeding for an offense under 18 Pa.C.S. (2) A criminal proceeding for an offense under 18 Pa.C.S.
Ch. 31 (relating to sexual offenses). Ch. 31 (relating to sexual offenses).
(b) Qualifications and use of experts.-- (b) Qualifications and use of experts.--
(1) In a criminal proceeding subject to this section, a (1) In a criminal proceeding subject to this section, a
witness may be qualified by the court as an expert if witness may be qualified by the court as an expert if
the witness has specialized knowledge beyond that the witness has specialized knowledge beyond that
possessed by the average layperson based on the possessed by the average layperson based on the
witnesss experience with, or specialized training or witnesss experience with, or specialized training or
education in, criminal justice, behavioral sciences or education in, criminal justice, behavioral sciences or
victim services issues, related to sexual violence, that will victim services issues, related to sexual violence, that will
assist the trier of fact in understanding the dynamics of assist the trier of fact in understanding the dynamics of
sexual violence, victim responses to sexual violence and sexual violence, victim responses to sexual violence and
the impact of sexual violence on victims during and after the impact of sexual violence on victims during and after
being assaulted. being assaulted.
(2) If qualified as an expert, the witness may testify to facts (2) If qualified as an expert, the witness may testify to facts
and opinions regarding specific types of victim responses and opinions regarding specific types of victim responses
and victim behaviors. and victim behaviors.
(3) The witnesss opinion regarding the credibility of any (3) The witnesss opinion regarding the credibility of any
other witness, including the victim, shall not be admissible. other witness, including the victim, shall not be admissible.
(4) A witness qualified by the court as an expert under (4) A witness qualified by the court as an expert under
this section may be called by the attorney for the this section may be called by the attorney for the
Commonwealth or the defendant to provide the expert Commonwealth or the defendant to provide the expert
testimony. testimony.
1. Scope 1. Scope
This section is applicable in prosecutions which fall under one of two This section is applicable in prosecutions which fall under one of two
classifications: classifications:
(1) An offense for which registration with the Pennsylvania State (1) An offense for which registration with the Pennsylvania State
Police is required. These offenses are classified in a three-tiered Police is required. These offenses are classified in a three-tiered
system. In 42 Pa.Cons.Stat.Ann. 9799.14, a sexually violent system. In 42 Pa.Cons.Stat.Ann. 9799.14, a sexually violent
offense is an offense designated as a Tier I, Tier II or Tier III sexual offense is an offense designated as a Tier I, Tier II or Tier III sexual
offense. Please see Addendum 2 for a listing of all offenses which offense. Please see Addendum 2 for a listing of all offenses which
required registration under Subchapter H. required registration under Subchapter H.
(2) A criminal proceeding under Chapter 31, Sexual Offenses, 18 (2) A criminal proceeding under Chapter 31, Sexual Offenses, 18
Pa.Cons.Stat.Ann. 3121 3129. Pa.Cons.Stat.Ann. 3121 3129.

Statutory Sexual Assault, 18 Pa.Cons.Stat.Ann. 3122.1 Statutory Sexual Assault, 18 Pa.Cons.Stat.Ann. 3122.1
Involuntary Deviate Sexual Intercourse, 18 Pa.Cons.Stat.Ann. Involuntary Deviate Sexual Intercourse, 18 Pa.Cons.Stat.Ann.
3123 3123
Sexual Assault, 18 Pa.Cons.Stat.Ann. 3124.1 Sexual Assault, 18 Pa.Cons.Stat.Ann. 3124.1
Institutional Sexual Assault, 18 Pa.Cons.Stat.Ann. 3124.2 Institutional Sexual Assault, 18 Pa.Cons.Stat.Ann. 3124.2
Aggravated Indecent Assault, 18 Pa.Cons.Stat.Ann. 3125 Aggravated Indecent Assault, 18 Pa.Cons.Stat.Ann. 3125
Indecent Assault, 18 Pa.Cons.Stat.Ann. 3126 Indecent Assault, 18 Pa.Cons.Stat.Ann. 3126
Indecent Exposure, 18 Pa.Cons.Stat.Ann. 3127 Indecent Exposure, 18 Pa.Cons.Stat.Ann. 3127
Sexual Intercourse with Animal, 3129 Sexual Intercourse with Animal, 3129
2. Qualifications of Expert 2. Qualifications of Expert
To be qualified under this section, the witness must be qualified by the To be qualified under this section, the witness must be qualified by the
court as an expert if the witness: court as an expert if the witness:
Has specialized knowledge beyond that possessed by the average Has specialized knowledge beyond that possessed by the average
layperson layperson
The specialized knowledge is based on the witnesss experience with, or The specialized knowledge is based on the witnesss experience with, or
specialized training or education related to sexual violence in: specialized training or education related to sexual violence in:
criminal justice, criminal justice,

behavioral sciences, or behavioral sciences, or
victim services issues. victim services issues.
Furthermore, the court must be satisfied that the testimony of the witness Furthermore, the court must be satisfied that the testimony of the witness
will assist the trier of fact in understanding: will assist the trier of fact in understanding:
the dynamics of sexual violence, the dynamics of sexual violence,

victim responses to sexual violence, and victim responses to sexual violence, and
the impact of sexual violence on victims during and after being assaulted. the impact of sexual violence on victims during and after being assaulted.
3. Relevant Testimony of Expert 3. Relevant Testimony of Expert
The expert may testify to facts and opinions regarding specific types of The expert may testify to facts and opinions regarding specific types of
victim responses to sexual assault and victim behaviors following sexual assault. victim responses to sexual assault and victim behaviors following sexual assault.
Furthermore, the testimony of the expert witness may assist the trier of Furthermore, the testimony of the expert witness may assist the trier of
fact in understanding: fact in understanding:

(a) Prohibition on Opinion Regarding Credibility (a) Prohibition on Opinion Regarding Credibility
Section 5920 specifically prohibits the witness from opining regarding Section 5920 specifically prohibits the witness from opining regarding
the credibility of any witness, including the victim. the credibility of any witness, including the victim.
(b) Availability of Witness (b) Availability of Witness
A witness properly qualified under this section may be called by the A witness properly qualified under this section may be called by the
prosecution or the defense. prosecution or the defense.
7.5 TESTIMONY OF CHILD VICTIM OR WITNESS BY CONTEMPORANEOUS 7.5 TESTIMONY OF CHILD VICTIM OR WITNESS BY CONTEMPORANEOUS
ALTERNATIVE METHOD ALTERNATIVE METHOD
A. Permissible Pursuant to 42 Pa.Cons.Stat.Ann. 5985 A. Permissible Pursuant to 42 Pa.Cons.Stat.Ann. 5985
In any prosecution or adjudication involving a child victim or child material In any prosecution or adjudication involving a child victim or child material
witness, the ability of a child victim or material witness to testify outside the presence of witness, the ability of a child victim or material witness to testify outside the presence of
the defendant, as to a sexual assault or otherwise, is governed by 42 Pa.Cons.Stat.Ann. the defendant, as to a sexual assault or otherwise, is governed by 42 Pa.Cons.Stat.Ann.
5985. Section 5985 was enacted by the legislature on July 15, 2004, following a series 5985. Section 5985 was enacted by the legislature on July 15, 2004, following a series
of amendments to the Confrontation Clause in Article 1, Section 9, of the Pennsylvania of amendments to the Confrontation Clause in Article 1, Section 9, of the Pennsylvania
Constitution. The appellate courts of Pennsylvania have upheld the 2004 amendments Constitution. The appellate courts of Pennsylvania have upheld the 2004 amendments
as constitutional. See Bergdoll v. Commonwealth, 858 A.2d 185 (Pa. Cmwlth. 2004) (en as constitutional. See Bergdoll v. Commonwealth, 858 A.2d 185 (Pa. Cmwlth. 2004) (en
banc), affd, 583 Pa. 44, 874 A.2d 1148 (2005) (per curiam). banc), affd, 583 Pa. 44, 874 A.2d 1148 (2005) (per curiam).
One purpose of the 2004 amendments was to remove from the Pennsylvania One purpose of the 2004 amendments was to remove from the Pennsylvania
Constitution the right to confront witnesses face to face so that the General Assembly Constitution the right to confront witnesses face to face so that the General Assembly
could enact laws or the Pennsylvania Supreme Court could adopt rules that permit could enact laws or the Pennsylvania Supreme Court could adopt rules that permit
children to testify in criminal proceedings outside the physical presence of the accused. children to testify in criminal proceedings outside the physical presence of the accused.
As a result of the 2003 amendments7 to the Pennsylvania Constitution, and the decision As a result of the 2003 amendments7 to the Pennsylvania Constitution, and the decision
of the Commonwealth Court and the Supreme Court to uphold the constitutionality of of the Commonwealth Court and the Supreme Court to uphold the constitutionality of
the amendments, prosecutors can now utilize 5985. the amendments, prosecutors can now utilize 5985.
Unlike an earlier version, the current version of 5985 has not been declared Unlike an earlier version, the current version of 5985 has not been declared
unconstitutional, and its use was approved by the Superior Court in Commonwealth unconstitutional, and its use was approved by the Superior Court in Commonwealth
v. Charlton, 902 A.2d 554 (Pa. Super. 2006), appeal denied, 590 Pa. 655, 911 A.2d 933 v. Charlton, 902 A.2d 554 (Pa. Super. 2006), appeal denied, 590 Pa. 655, 911 A.2d 933
(2006).8 (2006).8
Section 5985 states the following: Section 5985 states the following:
Subchapter D. Child Victims and Witnesses Subchapter D. Child Victims and Witnesses
5985. Testimony by contemporaneous alternative method 5985. Testimony by contemporaneous alternative method
(a) Contemporaneous alternative method.--Subject to (a) Contemporaneous alternative method.--Subject to

subsection (a.1), in any prosecution or adjudication involving subsection (a.1), in any prosecution or adjudication involving
a child victim or a child material witness, the court may a child victim or a child material witness, the court may
order that the testimony of the child victim or child material order that the testimony of the child victim or child material
witness be taken under oath or affirmation in a room other witness be taken under oath or affirmation in a room other
than the courtroom and transmitted by a contemporaneous than the courtroom and transmitted by a contemporaneous
alternative method. Only the attorneys for the defendant and alternative method. Only the attorneys for the defendant and
for the Commonwealth, the court reporter, the judge, persons for the Commonwealth, the court reporter, the judge, persons
necessary to operate the equipment and any person whose necessary to operate the equipment and any person whose
presence would contribute to the welfare and well-being of presence would contribute to the welfare and well-being of
the child victim or child material witness, including persons the child victim or child material witness, including persons
designated under section 5983 (relating to rights and services), designated under section 5983 (relating to rights and services),
may be present in the room with the child during his testimony. may be present in the room with the child during his testimony.
The court shall permit the defendant to observe and hear The court shall permit the defendant to observe and hear
the testimony of the child victim or child material witness but the testimony of the child victim or child material witness but
shall ensure that the child cannot hear or see the defendant. shall ensure that the child cannot hear or see the defendant.
The court shall make certain that the defendant and defense The court shall make certain that the defendant and defense
counsel have adequate opportunity to communicate for the counsel have adequate opportunity to communicate for the
purposes of providing an effective defense. Examination and purposes of providing an effective defense. Examination and
cross-examination of the child victim or child material witness cross-examination of the child victim or child material witness
shall proceed in the same manner as normally permitted. shall proceed in the same manner as normally permitted.
(a.1) Determination.--Before the court orders the child victim (a.1) Determination.--Before the court orders the child victim
or the child material witness to testify by a contemporaneous or the child material witness to testify by a contemporaneous
alternative method, the court must determine, based on alternative method, the court must determine, based on
evidence presented to it, that testifying either in an open evidence presented to it, that testifying either in an open
forum in the presence and full view of the finder of fact or in forum in the presence and full view of the finder of fact or in
7 The 2003 amendment substituted be confronted with the witnesses against him for meet the witnesses face to face in Article 1, 7 The 2003 amendment substituted be confronted with the witnesses against him for meet the witnesses face to face in Article 1,
Section 9 of the Pennsylvania Constitution. Section 9 of the Pennsylvania Constitution.
8 See also, 61 A.L.R. 4th 1155, Closed-circuit television witness examination; Commonwealth v. Geiger, 944 A.2d 85, 94-95 (Pa. Super. 8 See also, 61 A.L.R. 4th 1155, Closed-circuit television witness examination; Commonwealth v. Geiger, 944 A.2d 85, 94-95 (Pa. Super.
the defendants presence will result in the child victim or child the defendants presence will result in the child victim or child
material witness suffering serious emotional distress that material witness suffering serious emotional distress that
would substantially impair the child victims or child material would substantially impair the child victims or child material
witnesss ability to reasonably communicate. In making this witnesss ability to reasonably communicate. In making this
determination, the court may do all of the following: determination, the court may do all of the following:
(1) Observe and question the child victim or child material (1) Observe and question the child victim or child material
witness, either inside or outside the courtroom. witness, either inside or outside the courtroom.
(2) Hear testimony of a parent or custodian or any other (2) Hear testimony of a parent or custodian or any other
person, such as a person who has dealt with the child victim person, such as a person who has dealt with the child victim
or child material witness in a medical or therapeutic setting. or child material witness in a medical or therapeutic setting.
(a.2) Counsel and confrontation.-- (a.2) Counsel and confrontation.--
(1) If the court observes or questions the child victim or child (1) If the court observes or questions the child victim or child
material witness under subsection (a.1)(1), the attorney for the material witness under subsection (a.1)(1), the attorney for the
defendant and the attorney for the Commonwealth have the defendant and the attorney for the Commonwealth have the
right to be present, but the court shall not permit the defendant right to be present, but the court shall not permit the defendant
to be present. to be present.
(2) If the court hears testimony under subsection (a.1)(2), the (2) If the court hears testimony under subsection (a.1)(2), the
defendant, the attorney for the defendant and the attorney for defendant, the attorney for the defendant and the attorney for
the Commonwealth have the right to be present. the Commonwealth have the right to be present.
B. Procedure B. Procedure
Accordingly, in pertinent part, the statutory framework can be concisely Accordingly, in pertinent part, the statutory framework can be concisely
summarized as follows: summarized as follows:
1. Applicability 1. Applicability
Prosecution or adjudication must involve a child victim or a child material Prosecution or adjudication must involve a child victim or a child material
witness. See 42 Pa.Cons.Stat.Ann. 5985(a). witness. See 42 Pa.Cons.Stat.Ann. 5985(a).
The court may order that the testimony of the child victim or child material The court may order that the testimony of the child victim or child material
witness be taken under oath or affirmation in a room other than the witness be taken under oath or affirmation in a room other than the
courtroom and transmitted by a contemporaneous alternative method. courtroom and transmitted by a contemporaneous alternative method.
Only the attorneys for the defendant and for the Commonwealth, Only the attorneys for the defendant and for the Commonwealth,
the court reporter, the judge, and persons necessary to operate the the court reporter, the judge, and persons necessary to operate the
equipment may be present in the room with the child during his equipment may be present in the room with the child during his
testimony; testimony;
Additionally, any person whose presence would contribute to the Additionally, any person whose presence would contribute to the
welfare and well-being of the child victim or child material witness, welfare and well-being of the child victim or child material witness,
including persons designated under section 5983 (relating to including persons designated under section 5983 (relating to
rights and services), may be present in the room with the child rights and services), may be present in the room with the child
during his testimony. during his testimony.
Examination and cross-examination of the child victim/witness Examination and cross-examination of the child victim/witness
must proceed in the same manner as normally permitted. must proceed in the same manner as normally permitted.
See 42 Pa.Cons.Stat.Ann. 5985(a). See 42 Pa.Cons.Stat.Ann. 5985(a).
3. Defendants Rights 3. Defendants Rights
The trial court must permit the defendant to observe and hear the The trial court must permit the defendant to observe and hear the
testimony of the child victim or child material witness and to confer with testimony of the child victim or child material witness and to confer with
his attorney. See 42 Pa.Cons.Stat. Ann. 5985(a). his attorney. See 42 Pa.Cons.Stat. Ann. 5985(a).
Provided, however, that the child cannot hear or see the defendant. Provided, however, that the child cannot hear or see the defendant.
Provided further, that the defendant does not have a due process Provided further, that the defendant does not have a due process
right to access the childs mental health records for the purpose right to access the childs mental health records for the purpose
of rebutting the Commonwealths expert, if one is presented. of rebutting the Commonwealths expert, if one is presented.
Commonwealth v. Williams, --- Pa. ---, 84 A.3d 680, 692 (2014). A Commonwealth v. Williams, --- Pa. ---, 84 A.3d 680, 692 (2014). A
Section 5985 hearing is not intended to become a mini-trial on the Section 5985 hearing is not intended to become a mini-trial on the
general mental health status of the child, nor a fishing expedition general mental health status of the child, nor a fishing expedition
into the childs mental health history. Id. into the childs mental health history. Id.
4. Determination by the Court 4. Determination by the Court
The Commonwealth must establish that, if forced to testify in an open The Commonwealth must establish that, if forced to testify in an open
forum in the presence and full view of the finder of fact or in the defendants forum in the presence and full view of the finder of fact or in the defendants
presence, the child victim or child material witness presence, the child victim or child material witness
will suffer serious emotional distress will suffer serious emotional distress
that would substantially impair the child victims or child material that would substantially impair the child victims or child material
witnesss ability to reasonably communicate. witnesss ability to reasonably communicate.
This burden can be satisfied This burden can be satisfied

via a hearing with the child victim/witness either inside or outside via a hearing with the child victim/witness either inside or outside
the courtroom, the courtroom,
the attorneys for the defendant and the Commonwealth the attorneys for the defendant and the Commonwealth
have a right to be present, have a right to be present,
or, or,
through the testimony of a parent or custodian or any other through the testimony of a parent or custodian or any other
person, such as a person who has dealt with the child victim or person, such as a person who has dealt with the child victim or
child material witness in a medical or therapeutic setting, child material witness in a medical or therapeutic setting,
the defendant and the attorneys for the defendant and the the defendant and the attorneys for the defendant and the
Commonwealth have a right to be present. Commonwealth have a right to be present.
See 42 Pa.Cons.Stat.Ann. 5985(a.1 & a.2). See 42 Pa.Cons.Stat.Ann. 5985(a.1 & a.2).
C. Closed-Circuit Television is Permissible Alternative Method C. Closed-Circuit Television is Permissible Alternative Method
In Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa. Super. 2006), appeal In Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa. Super. 2006), appeal
denied, 590 Pa. 655, 911 A.2d 933 (2006), the Superior Court of Pennsylvania affirmed denied, 590 Pa. 655, 911 A.2d 933 (2006), the Superior Court of Pennsylvania affirmed
a trial courts decision to permit a child victim of sexual assault to testify pursuant a trial courts decision to permit a child victim of sexual assault to testify pursuant
to 5985 via closed-circuit television. In Charlton, the Commonwealth presented to 5985 via closed-circuit television. In Charlton, the Commonwealth presented
testimony from a psychotherapist that the victim suffered from depression, suicidal testimony from a psychotherapist that the victim suffered from depression, suicidal
thoughts, and post-traumatic stress disorder which likely would impact her ability to thoughts, and post-traumatic stress disorder which likely would impact her ability to
testify effectively and that the childs testifying in an open forum poses a significant testify effectively and that the childs testifying in an open forum poses a significant
risk for her emotional wellbeing. Id. (citation and internal quotation marks omitted). risk for her emotional wellbeing. Id. (citation and internal quotation marks omitted).
See also Commonwealth v. Kemmerer, 33 A.3d 39 (Pa. Super. 2011); Commonwealth v. See also Commonwealth v. Kemmerer, 33 A.3d 39 (Pa. Super. 2011); Commonwealth v.
Williams, --- Pa. ---, 84 A.3d 680, 692 (2014) (preliminary hearing). Williams, --- Pa. ---, 84 A.3d 680, 692 (2014) (preliminary hearing).
7.6 TESTIMONY OF CHILD VICTIM OR CHILD WITNESS BY RECORDED 7.6 TESTIMONY OF CHILD VICTIM OR CHILD WITNESS BY RECORDED
TESTIMONY TESTIMONY
A. Permissible Pursuant to 42 Pa.Cons.Stat.Ann. 5984.1 A. Permissible Pursuant to 42 Pa.Cons.Stat.Ann. 5984.1
In any prosecution or adjudication involving a child victim or child material In any prosecution or adjudication involving a child victim or child material
witness, the ability of a child victim or material witness to testify by way of previously witness, the ability of a child victim or material witness to testify by way of previously
recorded methods is governed by 42 Pa.Cons.Stat.Ann. 5984.1. Section 5984.1 was recorded methods is governed by 42 Pa.Cons.Stat.Ann. 5984.1. Section 5984.1 was
amended by the legislature on July 15, 2004, following a series of amendments to the amended by the legislature on July 15, 2004, following a series of amendments to the
Confrontation Clause in Article 1, Section 9, of the Pennsylvania Constitution. The Confrontation Clause in Article 1, Section 9, of the Pennsylvania Constitution. The
appellate courts of Pennsylvania upheld the constitutionality of Section 5984.1 in appellate courts of Pennsylvania upheld the constitutionality of Section 5984.1 in
Commonwealth v. Geiger, 944 A.2d 85, 96 (Pa. Super. 2008), appeal denied, 600 Pa. 738, Commonwealth v. Geiger, 944 A.2d 85, 96 (Pa. Super. 2008), appeal denied, 600 Pa. 738,
964 A.2d 1 (2009). The Superior Court stated: 964 A.2d 1 (2009). The Superior Court stated:
Further, receiving the testimony of the child witnesses by way of Further, receiving the testimony of the child witnesses by way of
videotape under Section 5984.1 did not violate the Confrontation videotape under Section 5984.1 did not violate the Confrontation
Clause of either the state or federal constitutions, especially Clause of either the state or federal constitutions, especially
where the trial court made findings that testifying in court where the trial court made findings that testifying in court
in the presence of Appellant would cause the child witnesses in the presence of Appellant would cause the child witnesses
severe emotional distress that would impair their ability to severe emotional distress that would impair their ability to
communicate truthfully and accurately, which is a sine qua non to communicate truthfully and accurately, which is a sine qua non to
allowing videotape questioning of child witnesses. allowing videotape questioning of child witnesses.
944 A.2d at 96. The Superior Court upheld the constitutionality of Section 5984.1 on 944 A.2d at 96. The Superior Court upheld the constitutionality of Section 5984.1 on
both Confrontation Clause and Due Process analysis. Id. at 96-97. both Confrontation Clause and Due Process analysis. Id. at 96-97.
Its use was further approved by the Superior Court in Commonwealth v. Atkinson, Its use was further approved by the Superior Court in Commonwealth v. Atkinson,
987 A.2d 743 (Pa. Super. 2009), appeal denied, 608 Pa. 614, 8 A.3d 340 (2010): 987 A.2d 743 (Pa. Super. 2009), appeal denied, 608 Pa. 614, 8 A.3d 340 (2010):
The issue of presenting testimony by video has arisen The issue of presenting testimony by video has arisen
most frequently with regard to testimony of child witnesses. The most frequently with regard to testimony of child witnesses. The
act entitled, Recorded Testimony, 42 Pa.C.S.A. 5984.1, provides act entitled, Recorded Testimony, 42 Pa.C.S.A. 5984.1, provides
that the testimony of a child victim or child material witness may that the testimony of a child victim or child material witness may
be recorded for presentation in court in such a manner to ensure be recorded for presentation in court in such a manner to ensure
that the child cannot see or hear the defendant. This statute that the child cannot see or hear the defendant. This statute
has been found to satisfy the Due Process and Confrontation has been found to satisfy the Due Process and Confrontation
Clauses under the United States and Pennsylvania Constitutions. Clauses under the United States and Pennsylvania Constitutions.
Geiger, 944 A.2d 85. This Court found that the purpose of the Geiger, 944 A.2d 85. This Court found that the purpose of the
Confrontation Clause was satisfied when the child testified under Confrontation Clause was satisfied when the child testified under
oath, the defendant was able to hear and see the child, the child oath, the defendant was able to hear and see the child, the child
was cross-examined, and the defendant was able to adequately was cross-examined, and the defendant was able to adequately
communicate with his attorney. Id. at 95-97. Similar child victim communicate with his attorney. Id. at 95-97. Similar child victim
protection statutes have been deemed constitutional in other protection statutes have been deemed constitutional in other
jurisdictions. See, e.g., United States v. Garcia, 7 F.3d 885 (9th jurisdictions. See, e.g., United States v. Garcia, 7 F.3d 885 (9th
Cir.1993); United States v. Weekley, 130 F.3d 747 (6th Cir.1997); Cir.1993); United States v. Weekley, 130 F.3d 747 (6th Cir.1997);
Lomholt v. Iowa, 327 F.3d 748 (8th Cir. 2003). Lomholt v. Iowa, 327 F.3d 748 (8th Cir. 2003).
Atkinson, 987 A.2d at 748. Section 5984.1 states the following: Atkinson, 987 A.2d at 748. Section 5984.1 states the following:
5984.1. Recorded testimony 5984.1. Recorded testimony
(a) Recording.--Subject to subsection (b), in any prosecution (a) Recording.--Subject to subsection (b), in any prosecution
or adjudication involving a child victim or child material or adjudication involving a child victim or child material
witness, the court may order that the child victims or child witness, the court may order that the child victims or child
material witnesss testimony be recorded for presentation in material witnesss testimony be recorded for presentation in
court by any method that accurately captures and preserves court by any method that accurately captures and preserves
the visual images, oral communications and other information the visual images, oral communications and other information
presented during such testimony. The testimony shall be taken presented during such testimony. The testimony shall be taken
under oath or affirmation before the court in chambers or in under oath or affirmation before the court in chambers or in
a special facility designed for taking the recorded testimony a special facility designed for taking the recorded testimony
of children. Only the attorneys for the defendant and for the of children. Only the attorneys for the defendant and for the
Commonwealth, persons necessary to operate the equipment, Commonwealth, persons necessary to operate the equipment,
a qualified shorthand reporter and any person whose presence a qualified shorthand reporter and any person whose presence
would contribute to the welfare and well-being of the child victim would contribute to the welfare and well-being of the child victim
or child material witness, including persons designated under or child material witness, including persons designated under
section 5983 (relating to rights and services), may be present in section 5983 (relating to rights and services), may be present in
the room with the child during testimony. The court shall permit the room with the child during testimony. The court shall permit
the defendant to observe and hear the testimony of the child the defendant to observe and hear the testimony of the child
victim or child material witness but shall ensure that the child victim or child material witness but shall ensure that the child
victim or material witness cannot hear or see the defendant. victim or material witness cannot hear or see the defendant.
Examination and cross-examination of the child victim or child Examination and cross-examination of the child victim or child
material witness shall proceed in the same manner as normally material witness shall proceed in the same manner as normally
permitted. The court shall make certain that the defendant and permitted. The court shall make certain that the defendant and
defense counsel have adequate opportunity to communicate defense counsel have adequate opportunity to communicate
for the purpose of providing an effective defense. for the purpose of providing an effective defense.
(b) Determination.--Before the court orders the child victim (b) Determination.--Before the court orders the child victim
or the child material witness to testify by recorded testimony, or the child material witness to testify by recorded testimony,
the court must determine, based on evidence presented to the court must determine, based on evidence presented to
it, that testifying either in an open forum in the presence and it, that testifying either in an open forum in the presence and
full view of the finder of fact or in the defendants presence full view of the finder of fact or in the defendants presence
will result in the child victim or child material witness suffering will result in the child victim or child material witness suffering
serious emotional distress that would substantially impair the serious emotional distress that would substantially impair the
child victims or child material witnesss ability to reasonably child victims or child material witnesss ability to reasonably
communicate. In making this determination, the court may do communicate. In making this determination, the court may do
any of the following: any of the following:
(1) Observe and question the child victim or child material (1) Observe and question the child victim or child material
witness, either inside or outside the courtroom. witness, either inside or outside the courtroom.
person, such as a person who has dealt with the child person, such as a person who has dealt with the child
victim or child material witness in a medical or therapeutic victim or child material witness in a medical or therapeutic
setting. setting.
(c) Counsel and confrontation.-- (c) Counsel and confrontation.--
(1) If the court observes or questions the child victim or child (1) If the court observes or questions the child victim or child
material witness under subsection (b)(1), the attorney for the material witness under subsection (b)(1), the attorney for the
defendant and the attorney for the Commonwealth have the defendant and the attorney for the Commonwealth have the
right to be present, but the court shall not permit the defendant right to be present, but the court shall not permit the defendant
to be present. to be present.
(2) If the court hears testimony under subsection (b)(2), the (2) If the court hears testimony under subsection (b)(2), the
defendant, the attorney for the defendant and the attorney for defendant, the attorney for the defendant and the attorney for
the Commonwealth have the right to be present. the Commonwealth have the right to be present.
B. Procedure B. Procedure
Accordingly, in pertinent part, the statutory framework can be concisely Accordingly, in pertinent part, the statutory framework can be concisely
summarized as follows: summarized as follows:
1. Applicability 1. Applicability
Prosecution or adjudication must involve a child victim or a child Prosecution or adjudication must involve a child victim or a child
material witness. material witness.
See 42 Pa.Cons.Stat.Ann. 5984.1(a). See 42 Pa.Cons.Stat.Ann. 5984.1(a).
2. Method of Recording 2. Method of Recording

The court may order that the testimony of the child victim or child The court may order that the testimony of the child victim or child
material witness be recorded for presentation in court material witness be recorded for presentation in court
by any method that accurately captures and preserves the by any method that accurately captures and preserves the
visual images, visual images,
oral communications, and oral communications, and
other information presented during such testimony other information presented during such testimony
The testimony shall be: The testimony shall be:

taken under oath or affirmation before the court taken under oath or affirmation before the court
in chambers or in chambers or
in a special facility designed for taking the recorded in a special facility designed for taking the recorded
testimony of children. testimony of children.
Only the following may be present: Only the following may be present:
the attorneys for the defendant and for the Commonwealth, the attorneys for the defendant and for the Commonwealth,
persons necessary to operate the equipment, and persons necessary to operate the equipment, and
a qualified shorthand reporter a qualified shorthand reporter
Additionally, any person whose presence would contribute to the Additionally, any person whose presence would contribute to the
welfare and well-being of the child victim or child material witness, welfare and well-being of the child victim or child material witness,
including persons designated under section 5983 (relating to including persons designated under section 5983 (relating to
rights and services), may be present in the room with the child rights and services), may be present in the room with the child
during testimony. during testimony.
3. Defendants Rights 3. Defendants Rights

The trial court must permit the defendant to observe and hear the The trial court must permit the defendant to observe and hear the
testimony of the child victim or child material witness and to confer testimony of the child victim or child material witness and to confer
with his attorney. with his attorney.
Provided, however, that the child victim or material witness cannot Provided, however, that the child victim or material witness cannot
hear or see the defendant. hear or see the defendant.
4. Determination by the Court 4. Determination by the Court

The Commonwealth must establish that, if forced to testify in an The Commonwealth must establish that, if forced to testify in an
open forum in the presence and full view of the finder of fact or in the open forum in the presence and full view of the finder of fact or in the
defendants presence, the child victim or child material witness defendants presence, the child victim or child material witness
will suffer serious emotional distress will suffer serious emotional distress
that would substantially impair the child victims or child material that would substantially impair the child victims or child material
witnesss ability to reasonably communicate. witnesss ability to reasonably communicate.
This burden can be satisfied This burden can be satisfied

By the court observing and questioning the child victim/witness By the court observing and questioning the child victim/witness
either inside or outside the courtroom, either inside or outside the courtroom,
The attorneys for the defendant and the Commonwealth The attorneys for the defendant and the Commonwealth
have a right to be present, have a right to be present,

or, or,
through the testimony of a parent or custodian or any other through the testimony of a parent or custodian or any other
person, such as a person who has dealt with the child victim or person, such as a person who has dealt with the child victim or
child material witness in a medical or therapeutic setting, child material witness in a medical or therapeutic setting,
the defendant and the attorneys for the defendant and the the defendant and the attorneys for the defendant and the
Commonwealth have a right to be present. Commonwealth have a right to be present.
See 42 Pa.Cons.Stat.Ann. 5984.1(b)(1)&(2) and (c). See 42 Pa.Cons.Stat.Ann. 5984.1(b)(1)&(2) and (c).
C. Videotape is Permissible Method C. Videotape is Permissible Method
In Commonwealth v. Geiger, 944 A.2d 85, 93 (Pa. Super. 2008), appeal denied, In Commonwealth v. Geiger, 944 A.2d 85, 93 (Pa. Super. 2008), appeal denied,
600 Pa. 738, 964 A.2d 1 (2009), the Superior Court approved the trial courts decision to 600 Pa. 738, 964 A.2d 1 (2009), the Superior Court approved the trial courts decision to
permit the child witness to testify via videotape. permit the child witness to testify via videotape.
7.7 EVIDENCE OF PROMPT COMPLAINT 7.7 EVIDENCE OF PROMPT COMPLAINT
A. Permissible in Prosecutions Case in Chief A. Permissible in Prosecutions Case in Chief
Pennsylvania law has long stated that in sexual assault cases the credibility of Pennsylvania law has long stated that in sexual assault cases the credibility of
the complaining witness is always an issue. Commonwealth v. Dillon, 863 A.2d 597, the complaining witness is always an issue. Commonwealth v. Dillon, 863 A.2d 597,
601-602 (Pa. Super. 2004)(emphasis in original), affd, 592 Pa. 351, 925 A.2d 131 (2007) 601-602 (Pa. Super. 2004)(emphasis in original), affd, 592 Pa. 351, 925 A.2d 131 (2007)
(quoting Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004)(en banc), (quoting Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004)(en banc),
appeal denied, 583 Pa. 658, 875 A.2d 1072 (2005)). appeal denied, 583 Pa. 658, 875 A.2d 1072 (2005)).
Typically, a prior consistent statement of a complainant or witness is limited to Typically, a prior consistent statement of a complainant or witness is limited to
rehabilitation attempts after the witness credibility has been challenged, expressly or rehabilitation attempts after the witness credibility has been challenged, expressly or
impliedly. See Pa.R.E. 613(c). However, in a long line of cases, appellate courts have impliedly. See Pa.R.E. 613(c). However, in a long line of cases, appellate courts have
approved of the use of testimony or other evidence of a prompt complaint of a rape by approved of the use of testimony or other evidence of a prompt complaint of a rape by
an alleged victim in the prosecutions case-in-chief. The justification is that an alleged victim in the prosecutions case-in-chief. The justification is that
in the special circumstances of a rape case the testimony of a in the special circumstances of a rape case the testimony of a
woman that she was raped is automatically vulnerable to attack woman that she was raped is automatically vulnerable to attack
by the defendant as recent fabrication in the absence of evidence by the defendant as recent fabrication in the absence of evidence
of hue and cry on her part. This justifies a special evidential of hue and cry on her part. This justifies a special evidential
rule permitting introduction of her fresh complaints in the rule permitting introduction of her fresh complaints in the
prosecutions case in chief. prosecutions case in chief.
Commonwealth v. Freeman, 441 A.2d 1327, 1332 (Pa. Super. 1982). Evidence of a Commonwealth v. Freeman, 441 A.2d 1327, 1332 (Pa. Super. 1982). Evidence of a
complaint of a sexual assault is competent evidence, properly admitted when limited to complaint of a sexual assault is competent evidence, properly admitted when limited to
establish that a complaint was made and also to identify the occurrence complained of establish that a complaint was made and also to identify the occurrence complained of
with the offense charged. Commonwealth v. Stohr, 522 A.2d 589, 592-593 (1987) (en with the offense charged. Commonwealth v. Stohr, 522 A.2d 589, 592-593 (1987) (en
banc)(quoting Commonwealth v. Freeman, 441 A.2d at 1331). banc)(quoting Commonwealth v. Freeman, 441 A.2d at 1331).
The rationale expressed in Freeman and Stohr was specifically adopted by the The rationale expressed in Freeman and Stohr was specifically adopted by the
Superior Court in Commonwealth v. ODrain, 829 A.2d 316 (Pa. Super. 2002) and in Superior Court in Commonwealth v. ODrain, 829 A.2d 316 (Pa. Super. 2002) and in
Commonwealth v. Bryson, 860 A.2d 1101 (Pa. Super. 2004)(en banc), appeal denied, Commonwealth v. Bryson, 860 A.2d 1101 (Pa. Super. 2004)(en banc), appeal denied,
583 Pa. 658, 875 A.2d 1072 (2005). However, both ODrain and Bryson based their 583 Pa. 658, 875 A.2d 1072 (2005). However, both ODrain and Bryson based their
decisions, in part, on the prior version of Pennsylvania Rule of Evidence 613 as well as decisions, in part, on the prior version of Pennsylvania Rule of Evidence 613 as well as
the prior comment: the prior comment:
[W]e agree with the Commonwealth in this instance that [the] [W]e agree with the Commonwealth in this instance that [the]
hearsay testimony was admissible under Rule of Evidence hearsay testimony was admissible under Rule of Evidence
613(c), commonly known as the prompt complaint exception to 613(c), commonly known as the prompt complaint exception to
the hearsay rule. Pennsylvania Rule of Evidence 613(c)(1) allows the hearsay rule. Pennsylvania Rule of Evidence 613(c)(1) allows
evidence of prior consistent statements to rebut an express evidence of prior consistent statements to rebut an express
or implied charge of fabrication, bias, improper influence or or implied charge of fabrication, bias, improper influence or
motive, or faulty memory. In cases involving sexual assault, Rule motive, or faulty memory. In cases involving sexual assault, Rule
613 authorizes the Commonwealth to present evidence in its 613 authorizes the Commonwealth to present evidence in its
case-in-chief of a prompt complaint by the victim because [the] case-in-chief of a prompt complaint by the victim because [the]
alleged victims testimony is automatically vulnerable to attack alleged victims testimony is automatically vulnerable to attack
by the defendant as recent fabrication in the absence of evidence by the defendant as recent fabrication in the absence of evidence
of hue and cry on her part. Pr.R.Evid.613(c) (comment), citing of hue and cry on her part. Pr.R.Evid.613(c) (comment), citing
Commonwealth v. Freeman, 295 Pa. Super. 467, 441 A.2d 1327, Commonwealth v. Freeman, 295 Pa. Super. 467, 441 A.2d 1327,
1331 (1982). Evidence of a complaint of a sexual assault is 1331 (1982). Evidence of a complaint of a sexual assault is
competent evidence, properly admitted when limited to establish competent evidence, properly admitted when limited to establish
that a complaint was made and also to identify the occurrence that a complaint was made and also to identify the occurrence
complained of with the offense charged. Commonwealth v. Stohr, complained of with the offense charged. Commonwealth v. Stohr,
361 Pa. Super. 293, 522 A.2d 589, 592-593 (1987) (en banc), 361 Pa. Super. 293, 522 A.2d 589, 592-593 (1987) (en banc),
quoting Commonwealth v. Freeman, 295 Pa.Super. 467, 441 A.2d quoting Commonwealth v. Freeman, 295 Pa.Super. 467, 441 A.2d
1327, 1331 (1982). 1327, 1331 (1982).
Commonwealth v. ODrain, 829 A.2d at 321-322. Commonwealth v. ODrain, 829 A.2d at 321-322.
Generally, hearsay is inadmissible at trial unless it falls into one Generally, hearsay is inadmissible at trial unless it falls into one
of the exceptions to the hearsay rule. Commonwealth v. ODrain, of the exceptions to the hearsay rule. Commonwealth v. ODrain,
829 A.2d 316 (Pa. Super. 2002). We find the explanation of 829 A.2d 316 (Pa. Super. 2002). We find the explanation of
prompt complaint testimony given by our esteemed colleague, prompt complaint testimony given by our esteemed colleague,
the Honorable Kate Ford Elliott, in Commonwealth v. ODrain, 829 the Honorable Kate Ford Elliott, in Commonwealth v. ODrain, 829
A.2d 316 (Pa. Super. 2002) to be instructive in this case. As will A.2d 316 (Pa. Super. 2002) to be instructive in this case. As will
be discussed below, pursuant to the rationale posited in ODrain, be discussed below, pursuant to the rationale posited in ODrain,
A.W.s hearsay testimony in this case was admissible pursuant to A.W.s hearsay testimony in this case was admissible pursuant to
Pennsylvania caselaw and Pennsylvania Rule of Evidence 613(c), Pennsylvania caselaw and Pennsylvania Rule of Evidence 613(c),
commonly known as the prompt complaint exception to the commonly known as the prompt complaint exception to the
hearsay rule. Pennsylvania Rule of Evidence 613(c)(1) allows hearsay rule. Pennsylvania Rule of Evidence 613(c)(1) allows
evidence of prior consistent statements to rebut an express evidence of prior consistent statements to rebut an express
or implied charge of fabrication, bias, improper influence or or implied charge of fabrication, bias, improper influence or
motive, or faulty memory. ODrain, supra. In cases involving motive, or faulty memory. ODrain, supra. In cases involving
sexual assault, Rule 613 authorizes the Commonwealth to sexual assault, Rule 613 authorizes the Commonwealth to
present evidence in its case-in-chief of a prompt complaint by the present evidence in its case-in-chief of a prompt complaint by the
victim because [the] alleged victims testimony is automatically victim because [the] alleged victims testimony is automatically
vulnerable to attack by the defendant as recent fabrication in the vulnerable to attack by the defendant as recent fabrication in the
absence of evidence of hue and cry on her part. Supra, quoting absence of evidence of hue and cry on her part. Supra, quoting
Pa.R.Evid. 613(c) (comment), citing Commonwealth v. Freeman, Pa.R.Evid. 613(c) (comment), citing Commonwealth v. Freeman,
295 Pa.Super. 467, 441 A.2d 1327, 1331 (1982). 295 Pa.Super. 467, 441 A.2d 1327, 1331 (1982).
Commonwealth v. Bryson, 860 A.2d at 1103. Commonwealth v. Bryson, 860 A.2d at 1103.
Pennsylvania Rule of Evidence 613(c), in addressing the admissibility a prior Pennsylvania Rule of Evidence 613(c), in addressing the admissibility a prior
consistent statement in other circumstances, now provides: consistent statement in other circumstances, now provides:
Rule 613. Witnesss Prior Inconsistent Statement to Rule 613. Witnesss Prior Inconsistent Statement to
Impeach; Witnesss Prior Consistent Statement to Impeach; Witnesss Prior Consistent Statement to
Rehabilitate Rehabilitate
... ...
(c) Witnesss Prior Consistent Statement to Rehabilitate. (c) Witnesss Prior Consistent Statement to Rehabilitate.
Evidence of a witnesss prior consistent statement is admissible Evidence of a witnesss prior consistent statement is admissible
to rehabilitate the witnesss credibility if the opposing party is to rehabilitate the witnesss credibility if the opposing party is
given an opportunity to cross-examine the witness about the given an opportunity to cross-examine the witness about the
statement and the statement is offered to rebut an express or statement and the statement is offered to rebut an express or
implied charge of: implied charge of:
(1) fabrication, bias, improper influence or motive, or (1) fabrication, bias, improper influence or motive, or
faulty memory and the statement was made before that faulty memory and the statement was made before that
which has been charged existed or arose; or which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which (2) having made a prior inconsistent statement, which
the witness has denied or explained, and the consistent the witness has denied or explained, and the consistent
statement supports the witnesss denial or explanation. statement supports the witnesss denial or explanation.
The official comment no longer refers to the prompt complaint exception in The official comment no longer refers to the prompt complaint exception in
sexual assault cases. It does not appear that the change in the comment would alter the sexual assault cases. It does not appear that the change in the comment would alter the
established case law permitting the admission of the prompt complaint by an exception established case law permitting the admission of the prompt complaint by an exception
to the hearsay rule. See 1 Wests Pennsylvania Practice 613-5, Prior Statements to Prove to the hearsay rule. See 1 Wests Pennsylvania Practice 613-5, Prior Statements to Prove
Prompt Complaint in Rape Cases. Prompt Complaint in Rape Cases.
The fact that a victim made a prompt complaint is no longer required to sustain The fact that a victim made a prompt complaint is no longer required to sustain
a rape conviction. Commonwealth v. Freeman, 441 A.2d at 1331.9 However, the a rape conviction. Commonwealth v. Freeman, 441 A.2d at 1331.9 However, the
promptness of reporting a rape or sexual assault may be a factor to be considered by promptness of reporting a rape or sexual assault may be a factor to be considered by
the jury in such cases pursuant to 18 Pa.Cons.Stat.Ann. 3105. See Commonwealth the jury in such cases pursuant to 18 Pa.Cons.Stat.Ann. 3105. See Commonwealth
v. Lane, 521 Pa. 390, 397, 555 A.2d 1246, 1250 (1989) (holding that the striking of a v. Lane, 521 Pa. 390, 397, 555 A.2d 1246, 1250 (1989) (holding that the striking of a
9 Under Pennsylvania common law, the promptness of a complaint, or the hue and cry as it was referred to, was considered an element 9 Under Pennsylvania common law, the promptness of a complaint, or the hue and cry as it was referred to, was considered an element
for a jury to consider when weighing the veracity of a complainant. See, e.g. Commonwealth v. Allen, 135 Pa. 483, 19 A. 957 (1890). for a jury to consider when weighing the veracity of a complainant. See, e.g. Commonwealth v. Allen, 135 Pa. 483, 19 A. 957 (1890).
jury venire member for cause by the trial judge because of the members willingness to jury venire member for cause by the trial judge because of the members willingness to
consider a late filed complaint was improper). 18 Pa.Cons.Stat.Ann. 3105 provides: consider a late filed complaint was improper). 18 Pa.Cons.Stat.Ann. 3105 provides:

3105. Prompt complaint 3105. Prompt complaint
Prompt reporting to public authority is not required in a Prompt reporting to public authority is not required in a
prosecution under this chapter: Provided, however, That nothing prosecution under this chapter: Provided, however, That nothing
in this section shall be construed to prohibit a defendant from in this section shall be construed to prohibit a defendant from
introducing evidence of the complainants failure to promptly introducing evidence of the complainants failure to promptly
report the crime if such evidence would be admissible pursuant report the crime if such evidence would be admissible pursuant
to the rules of evidence.10 to the rules of evidence.10
The lack of a prompt complaint by the alleged victim of a sex crime, though not The lack of a prompt complaint by the alleged victim of a sex crime, though not
dispositive of the merits of the case, may justifiably produce doubt as to whether the dispositive of the merits of the case, may justifiably produce doubt as to whether the
offense occurred or whether it was a recent fabrication by the complaining witness. offense occurred or whether it was a recent fabrication by the complaining witness.
See Commonwealth v. Jones, 672 A.2d 1353, 1358 (Pa. Super. 1996). Therefore, the See Commonwealth v. Jones, 672 A.2d 1353, 1358 (Pa. Super. 1996). Therefore, the
rationale for the prompt complaint exception is still valid despite the change in the rationale for the prompt complaint exception is still valid despite the change in the
official comment to P.R.E. 613(c). official comment to P.R.E. 613(c).
1. Evidence to Explain Lack of Prompt Complaint 1. Evidence to Explain Lack of Prompt Complaint
Evidence of the lack of prompt complaint, i.e., the lack of hue and cry Evidence of the lack of prompt complaint, i.e., the lack of hue and cry
has been recognized as an important and relevant factor for jurors to consider has been recognized as an important and relevant factor for jurors to consider
in sexual assault cases, and is admissible in the Commonwealths case in chief to in sexual assault cases, and is admissible in the Commonwealths case in chief to
avoid the doubt which occurs by an untimely complaint. See Commonwealth v. avoid the doubt which occurs by an untimely complaint. See Commonwealth v.
Dillon, 592 Pa. 351, 925 A.2d 131 (2007). Dillon, 592 Pa. 351, 925 A.2d 131 (2007).
In Commonwealth v. Dillon, the trial court committed error when it In Commonwealth v. Dillon, the trial court committed error when it
refused to let the Commonwealth show, in its case-in-chief, that the defendant refused to let the Commonwealth show, in its case-in-chief, that the defendant
had long sexually assaulted members of the complainants family in order to show had long sexually assaulted members of the complainants family in order to show
the reason why the victim had not made a prompt complaint. The testimony the reason why the victim had not made a prompt complaint. The testimony
of the Defendants abuse of the complainants mother was relevant to show the of the Defendants abuse of the complainants mother was relevant to show the
reason for the delay in reporting the abuse, as well as to support the complainants reason for the delay in reporting the abuse, as well as to support the complainants
testimony that she feared Defendant and believed he would carry out the threats testimony that she feared Defendant and believed he would carry out the threats
he made against her and her mother. 592 Pa. at 363, 925 A.2d at 139. See also, he made against her and her mother. 592 Pa. at 363, 925 A.2d at 139. See also,
--- Pa. ---, 74 A.3d 125 (2013). The Court in Dillon stated: --- Pa. ---, 74 A.3d 125 (2013). The Court in Dillon stated:
[W]e believe the trial court clearly abused its discretion [W]e believe the trial court clearly abused its discretion
in determining that, to the extent the evidence of appellants in determining that, to the extent the evidence of appellants
physical assaults against L.P.s family were proffered to explain physical assaults against L.P.s family were proffered to explain
the delay in her making a complaint, they were inadmissible the delay in her making a complaint, they were inadmissible
except in rebuttal. Such evidence is directly relevant to explain except in rebuttal. Such evidence is directly relevant to explain
a legitimate credibility question necessarily raised by the facts a legitimate credibility question necessarily raised by the facts
of the caseto wit, why L.P. waited to report the abuseand, of the caseto wit, why L.P. waited to report the abuseand,
therefore, counteract the possibility that a juror would develop therefore, counteract the possibility that a juror would develop
untutored assumptions and rely upon them in rendering untutored assumptions and rely upon them in rendering
a verdict. Admittedly, consigning the instant evidence to a verdict. Admittedly, consigning the instant evidence to
rebuttal, as the trial court did, is not the appropriate solution rebuttal, as the trial court did, is not the appropriate solution
in a case where a child-victim waited years to report abuse in a case where a child-victim waited years to report abuse
after it occurred, for the defense may not trigger its admission after it occurred, for the defense may not trigger its admission
as rebuttal and, thereby, block the Commonwealth from as rebuttal and, thereby, block the Commonwealth from
addressing the jurors likely negative inference arising from addressing the jurors likely negative inference arising from
the particularly long reporting delay in this case. the particularly long reporting delay in this case.
592 Pa. at 366, 925 A.2d at 140-141 (citation omitted). 592 Pa. at 366, 925 A.2d at 140-141 (citation omitted).
B. Prompt Complaint Testimony Disallowed B. Prompt Complaint Testimony Disallowed
Prompt complaint testimony has been disallowed when it exceeded its permissible Prompt complaint testimony has been disallowed when it exceeded its permissible
limits. Commonwealth v. Freeman, 441 A.2d 1327, 1331-1332 (Pa. Super. 1982). limits. Commonwealth v. Freeman, 441 A.2d 1327, 1331-1332 (Pa. Super. 1982).
Evidence of a prompt complaint of a sexual assault should be limited to establishing that Evidence of a prompt complaint of a sexual assault should be limited to establishing that
a complaint was actually made and to identify that the occurrence complained of with a complaint was actually made and to identify that the occurrence complained of with
the offense charged. Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004) the offense charged. Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004)
(en banc), appeal denied, 583 Pa. 658, 875 A.2d 1072 (2005). (en banc), appeal denied, 583 Pa. 658, 875 A.2d 1072 (2005).
Commonwealth v. Green, 487 Pa. 322, 325326, 409 A.2d 371, 373 Commonwealth v. Green, 487 Pa. 322, 325326, 409 A.2d 371, 373
(1979): all encompassing statement by detective inadmissible since it (1979): all encompassing statement by detective inadmissible since it
goes beyond identifying complaint and its nature. goes beyond identifying complaint and its nature.
Commonwealth v. Pettiford, 402 A.2d 532, 533 (Pa. Super. 1979): court Commonwealth v. Pettiford, 402 A.2d 532, 533 (Pa. Super. 1979): court
erred in admitting, as proof of prompt complaint, testimony of three erred in admitting, as proof of prompt complaint, testimony of three
witnesses, one of whom recounted the victims rape in great detail, in that witnesses, one of whom recounted the victims rape in great detail, in that
it went beyond what was necessary to identify occurrence of the crime. it went beyond what was necessary to identify occurrence of the crime.
C. Prompt Complaint Instruction C. Prompt Complaint Instruction
Just as caselaw recognizes that a victim of a sexual assault would be inclined to Just as caselaw recognizes that a victim of a sexual assault would be inclined to
make a prompt complaint, a prompt complaint instruction will most likely be requested make a prompt complaint, a prompt complaint instruction will most likely be requested
by the defense in the absence of evidence of a prompt complaint. The premise for the by the defense in the absence of evidence of a prompt complaint. The premise for the
prompt complaint instruction is that a victim of a sexual assault would reveal at the prompt complaint instruction is that a victim of a sexual assault would reveal at the
first available opportunity that an assault occurred. See Commonwealth v. Sandusky, first available opportunity that an assault occurred. See Commonwealth v. Sandusky,
77 A.3d 663, 667 (Pa.Super. 2013). The instruction permits a jury to call into question 77 A.3d 663, 667 (Pa.Super. 2013). The instruction permits a jury to call into question
a complainants credibility when he or she did not complain at the first available a complainants credibility when he or she did not complain at the first available
opportunity. See Commonwealth v. Prince, 719 A.2d 1086, 1091 (Pa. Super. 1998). opportunity. See Commonwealth v. Prince, 719 A.2d 1086, 1091 (Pa. Super. 1998).
The propriety of a prompt complaint instruction is determined on a case-by-case The propriety of a prompt complaint instruction is determined on a case-by-case
basis pursuant to a subjective standard based upon the age and condition of the victim. basis pursuant to a subjective standard based upon the age and condition of the victim.
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (prompt reporting Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (prompt reporting
does not require a revelation to the first person one sees after an attack). does not require a revelation to the first person one sees after an attack).
For example, this instruction is typically refused when the victim is a minor who, For example, this instruction is typically refused when the victim is a minor who,
because of immaturity, did not understand the nature of the assault: [w]here an assault because of immaturity, did not understand the nature of the assault: [w]here an assault
is of such a nature that the minor victim may not have appreciated the offensive nature is of such a nature that the minor victim may not have appreciated the offensive nature
of the conduct, the lack of a prompt complaint would not necessarily justify an inference of the conduct, the lack of a prompt complaint would not necessarily justify an inference
of fabrication. Commonwealth v. Jones, 672 A.2d 1353, 1357 n. 2 (Pa. Super. 1996). of fabrication. Commonwealth v. Jones, 672 A.2d 1353, 1357 n. 2 (Pa. Super. 1996).
Another example is if the victim suffers from a mental disability or diminished Another example is if the victim suffers from a mental disability or diminished
capacity, a prompt complaint instruction may not be appropriate. Commonwealth v. capacity, a prompt complaint instruction may not be appropriate. Commonwealth v.
Thomas, 904 A.2d at 971; Commonwealth v. Bryson, 860 A.2d 1101, 1104-1105 (Pa. Thomas, 904 A.2d at 971; Commonwealth v. Bryson, 860 A.2d 1101, 1104-1105 (Pa.
Super. 2004)(en banc), appeal denied, 583 Pa. 658, 875 A.2d 1072 (2005). Super. 2004)(en banc), appeal denied, 583 Pa. 658, 875 A.2d 1072 (2005).
Pennsylvania Standard Criminal Jury Instruction 4.13A provides: Pennsylvania Standard Criminal Jury Instruction 4.13A provides:
4.13A (Crim) Failure to Make Prompt Complaint in Certain 4.13A (Crim) Failure to Make Prompt Complaint in Certain
Sexual Offenses Sexual Offenses
1. Before you may find the defendant guilty of the crime charged 1. Before you may find the defendant guilty of the crime charged
in this case, you must be convinced beyond a reasonable in this case, you must be convinced beyond a reasonable
doubt that the act charged did in fact occur and that it occurred doubt that the act charged did in fact occur and that it occurred
without [name of victim]s consent. without [name of victim]s consent.
2. The evidence of [name of victim]s [failure to complain] [delay 2. The evidence of [name of victim]s [failure to complain] [delay
in making a complaint) does not necessarily make [his] [her] in making a complaint) does not necessarily make [his] [her]
testimony unreliable, but may remove from it the assurance of testimony unreliable, but may remove from it the assurance of
reliability accompanying the prompt complaint or outcry that reliability accompanying the prompt complaint or outcry that
the victim of a crime such as this would ordinarily be expected the victim of a crime such as this would ordinarily be expected
to make. Therefore, the [failure to complain] [delay in making to make. Therefore, the [failure to complain] [delay in making
a complaint] should be considered in evaluating [his] [her] a complaint] should be considered in evaluating [his] [her]
testimony and in deciding whether the act occurred [at all] [with testimony and in deciding whether the act occurred [at all] [with
or without [his] [her] consent], or without [his] [her] consent],
3. You must not consider [name of victim]s [failure to make] 3. You must not consider [name of victim]s [failure to make]
[delay in making] a complaint as conclusive evidence that the [delay in making] a complaint as conclusive evidence that the
act did not occur or that it did occur but with [his] [her] consent, act did not occur or that it did occur but with [his] [her] consent,
[name of victim]s failure to complain [at all] [promptly] [and the [name of victim]s failure to complain [at all] [promptly] [and the
nature of any explanation for that failure] are factors bearing on nature of any explanation for that failure] are factors bearing on
the believability of [his] [her] testimony and must be considered the believability of [his] [her] testimony and must be considered
by you in light of all the evidence in the case. by you in light of all the evidence in the case.
The Advisory Committee Note following the instruction offers this guidance: The Advisory Committee Note following the instruction offers this guidance:
The instruction is not appropriate where a child or a person The instruction is not appropriate where a child or a person
otherwise incapable, by mental infirmity, of promptly reporting otherwise incapable, by mental infirmity, of promptly reporting
the incident is the alleged victim. Commonwealth v. Snoke, the incident is the alleged victim. Commonwealth v. Snoke,
580 A.2d 195 (Pa. 1990). See, generally, Commonwealth v. 580 A.2d 195 (Pa. 1990). See, generally, Commonwealth v.
Bryson, 860 A.2d 1101 (Pa.Super. 2004). As the court said in Bryson, 860 A.2d 1101 (Pa.Super. 2004). As the court said in
Commonwealth v. Thomas, 904 A.2d 964, 970-71, (Pa.Super. Commonwealth v. Thomas, 904 A.2d 964, 970-71, (Pa.Super.
2006): 2006):
The propriety of a prompt complaint instruction is The propriety of a prompt complaint instruction is
determined on a case-by-case basis pursuant to a determined on a case-by-case basis pursuant to a
subjective standard based upon the age and condition subjective standard based upon the age and condition
of the victim. For example, where the victim of a sexual of the victim. For example, where the victim of a sexual
assault is a minor who may not have appreciated the assault is a minor who may not have appreciated the
offensive nature of the conduct, the lack of a prompt offensive nature of the conduct, the lack of a prompt
complaint would not necessarily justify an inference of complaint would not necessarily justify an inference of
fabrication. Commonwealth v. Jones, 449 Pa. Super. 58, fabrication. Commonwealth v. Jones, 449 Pa. Super. 58,
66 n.2, 672 A.2d 1353, 1357 n.2 (1996). This is especially 66 n.2, 672 A.2d 1353, 1357 n.2 (1996). This is especially
true where the perpetrator is one with authority or custodial true where the perpetrator is one with authority or custodial
control over the victim. Commonwealth v. Ables, 404 control over the victim. Commonwealth v. Ables, 404
Pa. Super. 169, 183, 590 A.2d 334, 340 (1991), appeal Pa. Super. 169, 183, 590 A.2d 334, 340 (1991), appeal
denied, 528 Pa. 620, 597 A.2d 1150 (1991). Similarly, if denied, 528 Pa. 620, 597 A.2d 1150 (1991). Similarly, if
the victim suffers from a mental disability or diminished the victim suffers from a mental disability or diminished
capacity, a prompt complaint instruction may not be capacity, a prompt complaint instruction may not be
appropriate. Commonwealth v. Bryson, 2004 PA Super appropriate. Commonwealth v. Bryson, 2004 PA Super
405, 860 A.2d 1101 (Pa.Super. 2004). 405, 860 A.2d 1101 (Pa.Super. 2004).
Where an instruction is warranted, this language was Where an instruction is warranted, this language was
approved in Commonwealth v. Patosky, 656 A.2d 499, approved in Commonwealth v. Patosky, 656 A.2d 499,
506 (Pa.Super. 1995), and Commonwealth v. Trippett, 506 (Pa.Super. 1995), and Commonwealth v. Trippett,
932 A.2d 188, 200 (Pa.Super. 2007). 932 A.2d 188, 200 (Pa.Super. 2007).
Of course, there is no right to have any particular form of instruction given by Of course, there is no right to have any particular form of instruction given by
the trial judge. Commonwealth v. Dozier, 439 A.2d 1185, 1188 (Pa. Super. 1982). It is the trial judge. Commonwealth v. Dozier, 439 A.2d 1185, 1188 (Pa. Super. 1982). It is
sufficient if the charge clearly and accurately explains the relevant law. Commonwealth sufficient if the charge clearly and accurately explains the relevant law. Commonwealth
v. Grove, 526 A.2d 369, 342 (Pa. Super. 1987), appeal denied, 517 Pa. 630, 539 A.2d 810 v. Grove, 526 A.2d 369, 342 (Pa. Super. 1987), appeal denied, 517 Pa. 630, 539 A.2d 810
(1987). As always, a charge must be viewed as a whole in order for the appellate courts (1987). As always, a charge must be viewed as a whole in order for the appellate courts
to assess if it fairly guided the jury. Commonwealth v. Rodriquez, 495 A.2d 569, 573 to assess if it fairly guided the jury. Commonwealth v. Rodriquez, 495 A.2d 569, 573
(Pa. Super. 1985). (Pa. Super. 1985).
7.8 RESISTANCE NOT REQUIRED 7.8 RESISTANCE NOT REQUIRED
To prove that a defendant is guilty of a sexual offense, a prosecutor does not have To prove that a defendant is guilty of a sexual offense, a prosecutor does not have
to show that the victim resisted the actions of the defendant.11 to show that the victim resisted the actions of the defendant.11
Commommonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. Commommonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super.
11 Commonwealth v. Smith, 863 A.2d 1172, 1176 (Pa. Super. 2004) (with reference to Sexual Assault, a felony of the second degree 11 Commonwealth v. Smith, 863 A.2d 1172, 1176 (Pa. Super. 2004) (with reference to Sexual Assault, a felony of the second degree
under 18 Pa.Cons.stat.ann. 3124.1, [r]esistance to sexual assault is not required to sustain a conviction.). under 18 Pa.Cons.stat.ann. 3124.1, [r]esistance to sexual assault is not required to sustain a conviction.).
2006), appeal denied, 592 Pa. 778, 926 A.2d 972 (2007): resistance to 2006), appeal denied, 592 Pa. 778, 926 A.2d 972 (2007): resistance to
the sexual assault [under 18 Pa.Cons.Stat.Ann. 3124.1] is not required. the sexual assault [under 18 Pa.Cons.Stat.Ann. 3124.1] is not required.
Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986): in case Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986): in case
involving Rape charge under 18 Pa.Cons.Stat.Ann 31121(a)(1)&(2), involving Rape charge under 18 Pa.Cons.Stat.Ann 31121(a)(1)&(2),
[i]t is not necessary to prove that the victim actually resisted in order to [i]t is not necessary to prove that the victim actually resisted in order to
prove that the act of sexual intercourse was against the victims will and/ prove that the act of sexual intercourse was against the victims will and/
or without consent. Id. at 557 n. 14, 510 A.2d at 1227 n. 14. or without consent. Id. at 557 n. 14, 510 A.2d at 1227 n. 14.
In 1976, Pennsylvania enacted a statute stating that a sexual assault victims lack In 1976, Pennsylvania enacted a statute stating that a sexual assault victims lack
of resistance may be admissible but is not dispositive. 18 Pa.Cons.Stat.Ann. 3107 of resistance may be admissible but is not dispositive. 18 Pa.Cons.Stat.Ann. 3107
provides: provides:

3107. Resistance not required 3107. Resistance not required
The alleged victim need not resist the actor in prosecutions The alleged victim need not resist the actor in prosecutions
under this chapter: Provided, however, That nothing in this under this chapter: Provided, however, That nothing in this
section shall be construed to prohibit a defendant from section shall be construed to prohibit a defendant from
introducing evidence that the alleged victim consented to the introducing evidence that the alleged victim consented to the
conduct in question.12 conduct in question.12
The statutory codification of the resistance not required policy reflects the The statutory codification of the resistance not required policy reflects the
belief that there are legitimate reasons for a victims nonresistance, for example, if such belief that there are legitimate reasons for a victims nonresistance, for example, if such
resistance is reasonably believed to be futile or dangerous: resistance is reasonably believed to be futile or dangerous:
It is well settled that where It is well settled that where
a victim is threatened with physical abuse if she [or he] a victim is threatened with physical abuse if she [or he]
refuses to engage in intercourse with the assailant even to refuses to engage in intercourse with the assailant even to
the point where the victim considers it pointless to resist, the point where the victim considers it pointless to resist,
we have held that such conduct demonstrates the use of we have held that such conduct demonstrates the use of
force and threat of force sufficiently compelling to meet the force and threat of force sufficiently compelling to meet the
statutory threshold of forcible compulsion. statutory threshold of forcible compulsion.
Commonwealth v. Lee, 638 A.2d 1006, 1008 (Pa. Super. 1994), appeal denied, 538 Pa. Commonwealth v. Lee, 638 A.2d 1006, 1008 (Pa. Super. 1994), appeal denied, 538 Pa.
643, 647 A.2d 898 (1994)(quoting Commonwealth v. Gabrielson, 536 A.2d 401, 407 643, 647 A.2d 898 (1994)(quoting Commonwealth v. Gabrielson, 536 A.2d 401, 407
(Pa. Super. 1988), appeal denied, 518 Pa. 636, 542 A.2d 1365 (1988). (Pa. Super. 1988), appeal denied, 518 Pa. 636, 542 A.2d 1365 (1988).
However, while the victim of a sexual assault need not resist, in prosecutions for However, while the victim of a sexual assault need not resist, in prosecutions for
Rape under 18 Pa.Cons.Stat.Ann. 3121, the prosecution must prove the element of Rape under 18 Pa.Cons.Stat.Ann. 3121, the prosecution must prove the element of
forcible compulsion, i.e., the force needs to be such as to demonstrate an absence of forcible compulsion, i.e., the force needs to be such as to demonstrate an absence of
consent, including submission without further resistance. Commonwealth v. Berkowitz, consent, including submission without further resistance. Commonwealth v. Berkowitz,
537 Pa. 143, 148, 641 A.2d 1161, 1163 (1994); Commonwealth v. Buffington, 574 Pa. 537 Pa. 143, 148, 641 A.2d 1161, 1163 (1994); Commonwealth v. Buffington, 574 Pa.
29, 42, 828 A.2d 1024, 1031 (2003).13 29, 42, 828 A.2d 1024, 1031 (2003).13
7.9 EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS 7.9 EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS
A. Prohibition Against Use of Prior Bad Acts/Criminal Activity A. Prohibition Against Use of Prior Bad Acts/Criminal Activity
The basic principle of Pa.R.E. 404(b) is consistent with F.R.E. 404(b) and prior The basic principle of Pa.R.E. 404(b) is consistent with F.R.E. 404(b) and prior
Pennsylvania case law. This means that evidence of other crimes, wrongs or bad acts Pennsylvania case law. This means that evidence of other crimes, wrongs or bad acts
cannot be used to prove a persons character to prove conduct on a specific date: cannot be used to prove a persons character to prove conduct on a specific date:
Rule 404. Character Evidence; Crimes or Other Acts Rule 404. Character Evidence; Crimes or Other Acts
... ...
(b) Crimes, Wrongs or Other Acts. (b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a persons character in order to show not admissible to prove a persons character in order to show
that on a particular occasion the person acted in accordance that on a particular occasion the person acted in accordance
with the character. with the character.
(2) Permitted Uses. This evidence may be admissible for (2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent, another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential only if the probative value of the evidence outweighs its potential
for unfair prejudice. for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the prosecutor (3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during must provide reasonable notice in advance of trial, or during
trial if the court excuses pretrial notice on good cause shown, trial if the court excuses pretrial notice on good cause shown,
of the general nature of any such evidence the prosecutor of the general nature of any such evidence the prosecutor
intends to introduce at trial. intends to introduce at trial.
Pa.R.E. 404(b). Pa.R.E. 404(b).
This prohibition is well established. See Commonwealth v. Watkins, 577 Pa. 194, This prohibition is well established. See Commonwealth v. Watkins, 577 Pa. 194,
215, 843 A.2d 1203, 1215 (2003), cert. denied, 543 U.S. 960, 125 S.Ct. 450, 160 L.Ed.2d 215, 843 A.2d 1203, 1215 (2003), cert. denied, 543 U.S. 960, 125 S.Ct. 450, 160 L.Ed.2d
324 (2004)(Evidence of a defendants prior criminal activity may not be admitted 324 (2004)(Evidence of a defendants prior criminal activity may not be admitted
solely to establish his bad character or criminal propensity.); Commonwealth v. Luster, solely to establish his bad character or criminal propensity.); Commonwealth v. Luster,
13 It is well accepted that 18 Pa.Cons.stat. ann. 3124.1, Sexual Assault, was enacted in response to the Pennsylvania Supreme Courts 13 It is well accepted that 18 Pa.Cons.stat. ann. 3124.1, Sexual Assault, was enacted in response to the Pennsylvania Supreme Courts
decision in Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994). The statute is intended to fill the loophole left by the rape decision in Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994). The statute is intended to fill the loophole left by the rape
and involuntary deviate sexual intercourse statutes by criminalizing non-consensual sex where the perpetrator employs little if no force. and involuntary deviate sexual intercourse statutes by criminalizing non-consensual sex where the perpetrator employs little if no force.
Commonwealth v. Pasley, 743 A.2d 521, 524 n.3 (Pa. Super. 1999), appeal denied, 563 Pa. 674, 759 A.2d 922 (2000). Commonwealth v. Pasley, 743 A.2d 521, 524 n.3 (Pa. Super. 1999), appeal denied, 563 Pa. 674, 759 A.2d 922 (2000).
71 A.3d 1029, 1050 (Pa. Super. 2013)(en banc)(It is axiomatic that evidence of prior 71 A.3d 1029, 1050 (Pa. Super. 2013)(en banc)(It is axiomatic that evidence of prior
crimes [or bad acts] is not admissible for the sole purpose of demonstrating a criminal crimes [or bad acts] is not admissible for the sole purpose of demonstrating a criminal
defendants propensity to commit crimes.). defendants propensity to commit crimes.).
B. Admissibility of Evidence Under Pa.R.E., Rule 404(b)(2) B. Admissibility of Evidence Under Pa.R.E., Rule 404(b)(2)
It is well established that It is well established that
[e]vidence implying other crimes may be introduced when the [e]vidence implying other crimes may be introduced when the
evidence has a proper evidentiary purpose and is not used merely evidence has a proper evidentiary purpose and is not used merely
to demonstrate that the defendant is a person of bad character to demonstrate that the defendant is a person of bad character
with a propensity to commit crime. with a propensity to commit crime.
Commonwealth v. Howard, 749 A.2d 941, 952 (Pa. Super. 2000), (quoting Commonwealth Commonwealth v. Howard, 749 A.2d 941, 952 (Pa. Super. 2000), (quoting Commonwealth
v. Gwynn, 555 Pa. 86, 105, 723 A.2d 143, 152, cert. denied, 528 U.S. 969, 120 S.Ct. 410, v. Gwynn, 555 Pa. 86, 105, 723 A.2d 143, 152, cert. denied, 528 U.S. 969, 120 S.Ct. 410,
145 L.Ed.2d 320 (1999). 145 L.Ed.2d 320 (1999).
Subsection (b)(2) of Pa.R.E. 404 recognizes legitimate evidentiary purposes for Subsection (b)(2) of Pa.R.E. 404 recognizes legitimate evidentiary purposes for
the introduction of evidence of other crimes, wrongs or bad acts. the introduction of evidence of other crimes, wrongs or bad acts.
... ...
... ...
another purpose, such as proving motive, opportunity, intent, another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential only if the probative value of the evidence outweighs its potential
for unfair prejudice. for unfair prejudice.
Rule 404(b)(2) specifically states that evidence of crimes, wrongs, or other acts Rule 404(b)(2) specifically states that evidence of crimes, wrongs, or other acts
may be admitted for other purposes, such as proof of: may be admitted for other purposes, such as proof of:
motive, motive,
opportunity, opportunity,
intent, intent,
preparation, preparation,
plan, plan,
knowledge, knowledge,
identity, identity,
absence of mistake or absence of mistake or
lack of accident. lack of accident.
This list is non-exclusive. See Commonwealth v. Reese, 31 A.3d 708, 723 (Pa. Super. 2011) This list is non-exclusive. See Commonwealth v. Reese, 31 A.3d 708, 723 (Pa. Super. 2011)
(en banc). Caselaw has established other legitimate purposes for this type of evidence, (en banc). Caselaw has established other legitimate purposes for this type of evidence,
including the admission of distinct crimes where they are part of the history or natural including the admission of distinct crimes where they are part of the history or natural
development of the case (the res gestae exception), and for impeachment purposes. development of the case (the res gestae exception), and for impeachment purposes.
Prior to the codification of the Pennsylvania Rules of Evidence, the Pennsylvania Prior to the codification of the Pennsylvania Rules of Evidence, the Pennsylvania
Supreme Court set forth the following list of exceptions: Supreme Court set forth the following list of exceptions:
(1) motive; (2) intent; (3) absence of mistake or accident; (4) a (1) motive; (2) intent; (3) absence of mistake or accident; (4) a
common scheme, plan or design embracing commission of two or common scheme, plan or design embracing commission of two or
more crimes so related to each other that proof of one naturally more crimes so related to each other that proof of one naturally
tends to prove the others; (5) to establish the identity of the person tends to prove the others; (5) to establish the identity of the person
charged with the commission of the crime on trial where there is charged with the commission of the crime on trial where there is
such a logical connection between the crimes that proof of one such a logical connection between the crimes that proof of one
will naturally tend to show that the accused is the person who will naturally tend to show that the accused is the person who
committed the other; (6) to impeach the credibility of a defendant committed the other; (6) to impeach the credibility of a defendant
who testifies in his trial; (7) situations where defendants prior who testifies in his trial; (7) situations where defendants prior
criminal history had been used by him to threaten or intimidate criminal history had been used by him to threaten or intimidate
the victim; (8) situations where the distinct crimes were part of a the victim; (8) situations where the distinct crimes were part of a
chain or sequence of events which formed the history of the case chain or sequence of events which formed the history of the case
and were part of its natural development (sometimes called res and were part of its natural development (sometimes called res
gestae exception). gestae exception).
Commonwealth v. Billa, 521 Pa. 168, 177, 555 A.2d 835, 840 (1989). Commonwealth v. Billa, 521 Pa. 168, 177, 555 A.2d 835, 840 (1989).
1. Natural History of the Case or Natural Development of the Facts 1. Natural History of the Case or Natural Development of the Facts
Evidence of other crimes may be admitted where such evidence is part Evidence of other crimes may be admitted where such evidence is part
of the history and natural development of the events and offenses for which the of the history and natural development of the events and offenses for which the
defendant is charged. In Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483 defendant is charged. In Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483
(2009), cert. denied, 559 U.S. 1111, 130 S.Ct. 2415, 176 L.Ed.2d 932 (2010), the (2009), cert. denied, 559 U.S. 1111, 130 S.Ct. 2415, 176 L.Ed.2d 932 (2010), the
Pennsylvania Supreme Court upheld the introduction of evidence, based on the Pennsylvania Supreme Court upheld the introduction of evidence, based on the
res gestae exception, that the defendant repeatedly abused the victim, a small res gestae exception, that the defendant repeatedly abused the victim, a small
child, before beating her to death. The Court concluded that the evidence was child, before beating her to death. The Court concluded that the evidence was
relevant to help establish the chain of events and pattern of abuse that eventually relevant to help establish the chain of events and pattern of abuse that eventually
led to the fatal beating. 603 Pa. at 114, 982 A.2d at 497. However, in determining led to the fatal beating. 603 Pa. at 114, 982 A.2d at 497. However, in determining
whether evidence of other prior bad acts are admissible, the trial court is obliged whether evidence of other prior bad acts are admissible, the trial court is obliged
to balance the probative value of such evidence against its prejudicial impact. Id. to balance the probative value of such evidence against its prejudicial impact. Id.
Commonwealth v. Spotz, 552 Pa. 499, 513, 716 A.2d 580, 586 (1998), Commonwealth v. Spotz, 552 Pa. 499, 513, 716 A.2d 580, 586 (1998),
cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 551 (1999) cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 551 (1999)
(Spotz I): The Supreme Court of Pennsylvania recognized that evidence (Spotz I): The Supreme Court of Pennsylvania recognized that evidence
of prior bad acts or crimes may be admitted where such evidence was of prior bad acts or crimes may be admitted where such evidence was
part of the chain or sequence of events which became part of the history part of the chain or sequence of events which became part of the history
of the case in question and formed part of the natural development of of the case in question and formed part of the natural development of
the facts. the facts.
Commonwealth v. Lark, 518 Pa. 290, 303, 543 A.2d 491, 497 (1988): Commonwealth v. Lark, 518 Pa. 290, 303, 543 A.2d 491, 497 (1988):
[E]vidence of another crime may also be introduced where such [E]vidence of another crime may also be introduced where such
evidence was part of the chain or sequence of events which became evidence was part of the chain or sequence of events which became
part of the history of the case in question and formed part of the part of the history of the case in question and formed part of the
natural development of the facts. natural development of the facts.
Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893 (2002), cert. Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893 (2002), cert.
denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003): Evidence denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003): Evidence
of prior abuse over three years prior to murder was admissible where of prior abuse over three years prior to murder was admissible where
abuse was part of a chain or sequence of events which formed the abuse was part of a chain or sequence of events which formed the
history of the case and demonstrated defendants motive, malice, history of the case and demonstrated defendants motive, malice,
intent and ill-will toward victim. intent and ill-will toward victim.
2. Impeachment Evidence 2. Impeachment Evidence
(a) Impeachment of Testifying Defendant (a) Impeachment of Testifying Defendant
Evidence of other crimes, wrongs or acts may be used to impeach the Evidence of other crimes, wrongs or acts may be used to impeach the
testimony of a testifying defendant. testimony of a testifying defendant.
Evidence of prior bad acts committed by a defendant is not Evidence of prior bad acts committed by a defendant is not
admissible solely to show the defendants bad character or admissible solely to show the defendants bad character or
his propensity for committing bad acts. . . . The evidence may his propensity for committing bad acts. . . . The evidence may
also be admissible to impeach the credibility of a testifying also be admissible to impeach the credibility of a testifying
defendant; to show that the defendant has used the prior defendant; to show that the defendant has used the prior
bad acts to threaten the victim; and in situations where the bad acts to threaten the victim; and in situations where the
bad acts were part of a chain or sequence of events that bad acts were part of a chain or sequence of events that
formed the history of the case and were part of its natural formed the history of the case and were part of its natural
development. development.
Commonwealth v. Reid, 571 Pa. 1, 35, 811 A.2d 530, 550 (2002), cert. denied, Commonwealth v. Reid, 571 Pa. 1, 35, 811 A.2d 530, 550 (2002), cert. denied,
540 U.S. 850, 124 S.Ct. 131, 157 L.Ed.2d 92 (2003). Furthermore, 540 U.S. 850, 124 S.Ct. 131, 157 L.Ed.2d 92 (2003). Furthermore,
[e]vidence implying other crimes may be introduced [e]vidence implying other crimes may be introduced
when the evidence has a proper evidentiary purpose and when the evidence has a proper evidentiary purpose and
is not used merely to demonstrate that the defendant is is not used merely to demonstrate that the defendant is
a person of bad character with a propensity to commit a person of bad character with a propensity to commit
crime. Commonwealth v. Gwynn, 555 Pa. 86, 105, 723 crime. Commonwealth v. Gwynn, 555 Pa. 86, 105, 723
A.2d 143, 152 (1998), cert. denied, 528 U.S. 969, 120 S.Ct. A.2d 143, 152 (1998), cert. denied, 528 U.S. 969, 120 S.Ct.
410, 145 L.Ed.2d 320 (1999). It is black letter law that the 410, 145 L.Ed.2d 320 (1999). It is black letter law that the
Commonwealth may impeach a defendants credibility Commonwealth may impeach a defendants credibility
with reference to prior crimes where the defense opens with reference to prior crimes where the defense opens
the door. Commonwealth v. Days, 784 A.2d 817, 821 (Pa. the door. Commonwealth v. Days, 784 A.2d 817, 821 (Pa.
Super. 2001). [The defendant] is not insulated from being Super. 2001). [The defendant] is not insulated from being
discredited about the factual accuracy simply because that discredited about the factual accuracy simply because that
proof involves other crimes. Id. proof involves other crimes. Id.
Commonwealth v. Hood, 875 A.2d 175, 185 (Pa. Super. 2005), appeal denied, Commonwealth v. Hood, 875 A.2d 175, 185 (Pa. Super. 2005), appeal denied,
585 Pa. 695, 889 A.2d 88 (2005). 585 Pa. 695, 889 A.2d 88 (2005).
(b) Impeachment of Testifying Character Witness (b) Impeachment of Testifying Character Witness
The Pennsylvania Supreme Court noted in Commonwealth v. Peterkin, The Pennsylvania Supreme Court noted in Commonwealth v. Peterkin,
513 A.2d 373, 382-383 (Pa. 1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 513 A.2d 373, 382-383 (Pa. 1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962,
93 L.Ed.2d 1010 (1987), that although evidence of good character may not be 93 L.Ed.2d 1010 (1987), that although evidence of good character may not be
rebutted by evidence of specific acts of misconduct, a character witness may rebutted by evidence of specific acts of misconduct, a character witness may
be cross-examined regarding his knowledge of particular acts of misconduct be cross-examined regarding his knowledge of particular acts of misconduct
by the defendant to test the accuracy of his testimony and the standard by by the defendant to test the accuracy of his testimony and the standard by
which he measures reputation.14 which he measures reputation.14
Commonwealth v. Hoover, 16 A.3d 1148, 1149-1150 (Pa. Super. Commonwealth v. Hoover, 16 A.3d 1148, 1149-1150 (Pa. Super.
2011): Although the Commonwealth may cross-examine character 2011): Although the Commonwealth may cross-examine character
witnesses about specific instances of conduct that are probative of witnesses about specific instances of conduct that are probative of
those traits in question the Commonwealth may not question the those traits in question the Commonwealth may not question the
witnesses about allegations of other criminal misconduct by the witnesses about allegations of other criminal misconduct by the
accused where those allegations did not result in a conviction. accused where those allegations did not result in a conviction.
Commonwealth v. Puksar, 597 Pa. 240, 263, 951 A.2d 267, 281, Commonwealth v. Puksar, 597 Pa. 240, 263, 951 A.2d 267, 281,
(2008): [A] character witness may be cross-examined regarding (2008): [A] character witness may be cross-examined regarding
his or her knowledge of particular acts of misconduct to test the his or her knowledge of particular acts of misconduct to test the
accuracy of the testimony. accuracy of the testimony.
In Commonwealth v. Hood, 872 A.2d 175, 185 (Pa. Super. 2005), appeal In Commonwealth v. Hood, 872 A.2d 175, 185 (Pa. Super. 2005), appeal
denied, 585 Pa. 695, 889 A.2d 88 (2005), the trial court permitted evidence of denied, 585 Pa. 695, 889 A.2d 88 (2005), the trial court permitted evidence of
the defendants incarceration as it was not offered to show bad character of the defendants incarceration as it was not offered to show bad character of
defendant, but rather, to impeach testimony of defendants girlfriend, who was defendant, but rather, to impeach testimony of defendants girlfriend, who was
defense alibi witness; the Commonwealth could impeach her credibility by defense alibi witness; the Commonwealth could impeach her credibility by
asking witness if she ever visited defendant in prison during the time periods asking witness if she ever visited defendant in prison during the time periods
relevant to the commission of the crime as charged. Although the witness was relevant to the commission of the crime as charged. Although the witness was
not a character witness, the cross-examination using the defendants prior not a character witness, the cross-examination using the defendants prior
other crimes was admissible because the defense opened the door. Id. other crimes was admissible because the defense opened the door. Id.
3. Introduction of Prior Bad Acts that are Used to Threaten the Victim 3. Introduction of Prior Bad Acts that are Used to Threaten the Victim
Evidence of other crimes, wrongs or acts may be introduced when the Evidence of other crimes, wrongs or acts may be introduced when the
defendant has used the prior bad acts to threaten the victim. Commonwealth v. defendant has used the prior bad acts to threaten the victim. Commonwealth v.
Reid, 571 Pa. 1, 35, 811 A.2d 530, 550 (2002), cert. denied, 540 U.S. 850, 124 S.Ct. Reid, 571 Pa. 1, 35, 811 A.2d 530, 550 (2002), cert. denied, 540 U.S. 850, 124 S.Ct.
131, 157 L.Ed.2d 92 (2003). 131, 157 L.Ed.2d 92 (2003).
14 See also, Commonwealth v. Busanet, 572 Pa. 535, 551, 817 A.2d 1060, 1069 (2002), cert. denied, 540 U.S. 869, 124 S.Ct. 192, 157 14 See also, Commonwealth v. Busanet, 572 Pa. 535, 551, 817 A.2d 1060, 1069 (2002), cert. denied, 540 U.S. 869, 124 S.Ct. 192, 157
L.Ed.2d 126 (2003). L.Ed.2d 126 (2003).
In Commonwealth v. Richter, 551 Pa. 507, 711 A.2d 464 (1998), the In Commonwealth v. Richter, 551 Pa. 507, 711 A.2d 464 (1998), the
Pennsylvania Supreme Court held that that the trial court properly Pennsylvania Supreme Court held that that the trial court properly
admitted evidence of the defendants prior sexual assaults on the victim as admitted evidence of the defendants prior sexual assaults on the victim as
evidence that that the victim did not consent to rape and to prove forcible evidence that that the victim did not consent to rape and to prove forcible
compulsion or threat of forcible compulsion. 551 Pa. at 512-513, 711 A.2d compulsion or threat of forcible compulsion. 551 Pa. at 512-513, 711 A.2d
at 466-467. at 466-467.
In Commonwealth v. Claypool, 508 Pa. 198, 205, 495 A.2d 176, 179 In Commonwealth v. Claypool, 508 Pa. 198, 205, 495 A.2d 176, 179
(1985), the Pennsylvania Supreme Court held that the trial court properly (1985), the Pennsylvania Supreme Court held that the trial court properly
admitted evidence of the defendants statement to the rape victim that he admitted evidence of the defendants statement to the rape victim that he
had committed prior rapes because it was relevant to prove his attempts had committed prior rapes because it was relevant to prove his attempts
to threaten and intimidate her into submission. to threaten and intimidate her into submission.
In Commonwealth v. Corley, 638 A.2d 985, 987-988, (Pa. Super. 1994), In Commonwealth v. Corley, 638 A.2d 985, 987-988, (Pa. Super. 1994),
appeal denied, 538 Pa. 641, 647 A.2d 896 (1994): in prosecution for rape appeal denied, 538 Pa. 641, 647 A.2d 896 (1994): in prosecution for rape
and involuntary deviate sexual intercourse, among other charges, the and involuntary deviate sexual intercourse, among other charges, the
defendants statement to rape victim that he had done this twice before defendants statement to rape victim that he had done this twice before
was properly admitted to show threat or force in rape of victim. was properly admitted to show threat or force in rape of victim.
4. Common Scheme, Plan or Design 4. Common Scheme, Plan or Design
Evidence of prior bad acts or criminal conduct may be admitted to show a Evidence of prior bad acts or criminal conduct may be admitted to show a
common pattern, to establish a scheme, plan or design. common pattern, to establish a scheme, plan or design.
Commonwealth v. Elliott, 549 Pa. 132, 146147, 700 A.2d 1243, 1249- Commonwealth v. Elliott, 549 Pa. 132, 146147, 700 A.2d 1243, 1249-
1250 (1997), cert. denied, 524 U.S. 955, 118 S.Ct. 2375, 141 L.Ed.2d 742 1250 (1997), cert. denied, 524 U.S. 955, 118 S.Ct. 2375, 141 L.Ed.2d 742
(1998): In prosecution for murder, rape and involuntary deviate sexual (1998): In prosecution for murder, rape and involuntary deviate sexual
intercourse, because trial court gave several cautionary instructions to intercourse, because trial court gave several cautionary instructions to
the jury indicating that evidence of defendants prior sexual attacks on the jury indicating that evidence of defendants prior sexual attacks on
three different victims could not be used to infer bad character or criminal three different victims could not be used to infer bad character or criminal
tendencies and repeated this cautionary charge in the final instructions, tendencies and repeated this cautionary charge in the final instructions,
no prejudice was found from use of this evidence to establish common no prejudice was found from use of this evidence to establish common
scheme, plan or design. scheme, plan or design.
There were sufficient factual similarities between two crimes involving There were sufficient factual similarities between two crimes involving
the sexual assault of young boys to show a common scheme plan or the sexual assault of young boys to show a common scheme plan or
design in Commonwealth v. OBrien, 836 A.2d 966, 970-971 (Pa. Super. design in Commonwealth v. OBrien, 836 A.2d 966, 970-971 (Pa. Super.
2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004). Therefore, the 2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004). Therefore, the
evidence of a defendants prior sexual assaults of children was admissible evidence of a defendants prior sexual assaults of children was admissible
in prosecution of defendant for currently alleged sexual assault of a minor. in prosecution of defendant for currently alleged sexual assault of a minor.
Commonwealth v. Robinson, --- Pa. ---, 864 A.2d 460, 481 (2004), cert. Commonwealth v. Robinson, --- Pa. ---, 864 A.2d 460, 481 (2004), cert.
denied, 546 U.S. 983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005): Evidence denied, 546 U.S. 983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005): Evidence
of brutal attacks and rapes of women within same locale during eleven of brutal attacks and rapes of women within same locale during eleven
months time frame permitted consolidation of cases, especially in light of months time frame permitted consolidation of cases, especially in light of
real relationship in the way victims were killed. real relationship in the way victims were killed.
5. Knowledge, Identity or Absence of Mistake or Accident 5. Knowledge, Identity or Absence of Mistake or Accident
(a) Identity (a) Identity
The Pennsylvania appellate courts have stated that evidence, by way of The Pennsylvania appellate courts have stated that evidence, by way of
prior bad acts or crimes, is admissible to prove the identity of the person prior bad acts or crimes, is admissible to prove the identity of the person
charged with the commission of the crime on trial. Commonwealth v. charged with the commission of the crime on trial. Commonwealth v.
OBrien, 836 A.2d 966, 969 (Pa. Super. 2003), appeal denied, 577 Pa. 695, 845 OBrien, 836 A.2d 966, 969 (Pa. Super. 2003), appeal denied, 577 Pa. 695, 845
A.2d 817 (2004). A.2d 817 (2004).
Identity as to the charged crime may be proven with Identity as to the charged crime may be proven with
evidence of another crime where the separate crimes evidence of another crime where the separate crimes
share a method so distinctive and circumstances so share a method so distinctive and circumstances so
nearly identical as to constitute the virtual signature nearly identical as to constitute the virtual signature
of the defendant. Required, therefore, is such a high of the defendant. Required, therefore, is such a high
correlation in the details of the crimes that proof that correlation in the details of the crimes that proof that
a person committed one of them makes it very unlikely a person committed one of them makes it very unlikely
that anyone else committed the others. that anyone else committed the others.
In comparing the methods and circumstances of separate In comparing the methods and circumstances of separate
crimes, a court must necessarily look for similarities in a crimes, a court must necessarily look for similarities in a
number of factors, including: (1) the manner in which number of factors, including: (1) the manner in which
the crimes were committed; (2) weapons used; (3) the crimes were committed; (2) weapons used; (3)
ostensible purpose of the crime; (4) location; and (5) ostensible purpose of the crime; (4) location; and (5)
type of victims. Remoteness in time between the crimes type of victims. Remoteness in time between the crimes
is also factored, although its probative value has been is also factored, although its probative value has been
held inversely proportional to the degree of similarity held inversely proportional to the degree of similarity
between crimes. between crimes.
Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa. Super. 2009), appeal Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa. Super. 2009), appeal
denied, 604 Pa. 696, 986 A.2d 150 (2009)(citations omitted). denied, 604 Pa. 696, 986 A.2d 150 (2009)(citations omitted).
In Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012)(en banc), appeal In Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012)(en banc), appeal
denied, --- Pa. ---, 72 A.3d 603 (2013), in a five-to-four decision, the Superior denied, --- Pa. ---, 72 A.3d 603 (2013), in a five-to-four decision, the Superior
Court reversed the trial courts admission of testimony by the defendants Court reversed the trial courts admission of testimony by the defendants
former romantic partners about occurrences of abuse and domestic violence, former romantic partners about occurrences of abuse and domestic violence,
and held that it was not appropriate identity evidence. The Superior Court and held that it was not appropriate identity evidence. The Superior Court
held that the testimony of the prior assaults on the former girlfriends did not held that the testimony of the prior assaults on the former girlfriends did not
establish any particular distinctive pattern of behavior by the defendant. establish any particular distinctive pattern of behavior by the defendant.
57 A.3d at 102. 57 A.3d at 102.
(b) Absence of Mistake or Accident (b) Absence of Mistake or Accident
Evidence of a prior act is admissible to prove a lack of accident if (1) Evidence of a prior act is admissible to prove a lack of accident if (1)
the previous incident is similar to the incident in question and (2) a similar the previous incident is similar to the incident in question and (2) a similar
result occurred in both cases. Commonwealth v. Donahue, 519 Pa. 532, 543, result occurred in both cases. Commonwealth v. Donahue, 519 Pa. 532, 543,
549 A.2d 121, 127 (1988). One factor to be weighed when considering the 549 A.2d 121, 127 (1988). One factor to be weighed when considering the
similarities of incidents is the proximity of time of the incidents at issue. Id. similarities of incidents is the proximity of time of the incidents at issue. Id.
In Commonwealth v. Boczkowski, 577 Pa. 421, 444-445, 846 A.2d 75, In Commonwealth v. Boczkowski, 577 Pa. 421, 444-445, 846 A.2d 75,
88-89 (2004), the Court found remarkable similarities between the manner 88-89 (2004), the Court found remarkable similarities between the manner
in which both of the defendants wives were killed; therefore, evidence in which both of the defendants wives were killed; therefore, evidence
concerning the circumstances of his first wifes death supported a reasonable concerning the circumstances of his first wifes death supported a reasonable
inference that his second wifes death was not accidental, but rather was a inference that his second wifes death was not accidental, but rather was a
result of a deliberate act. Therefore, the Court found that the evidence was result of a deliberate act. Therefore, the Court found that the evidence was
highly relevant and that its probative value outweighed any potential for highly relevant and that its probative value outweighed any potential for
unfair prejudice. unfair prejudice.
6. Motive 6. Motive
A defendants motive in committing one crime may be to conceal, or to A defendants motive in committing one crime may be to conceal, or to
prevent his conviction of, a previous crime. See Commonwealth v. Paddy, 569 prevent his conviction of, a previous crime. See Commonwealth v. Paddy, 569
Pa. 47, 69, 800 A.2d 294, 307 (2002). As with the other exceptions, proof of Pa. 47, 69, 800 A.2d 294, 307 (2002). As with the other exceptions, proof of
motive must be properly weighed against potential prejudice. In Commonwealth motive must be properly weighed against potential prejudice. In Commonwealth
v. Collins, 70 A.3d 1245, 1252 (Pa. Super. 2013), the identity of the victims as v. Collins, 70 A.3d 1245, 1252 (Pa. Super. 2013), the identity of the victims as
members of a rival drug distribution organization was permissible evidence of members of a rival drug distribution organization was permissible evidence of
motive in a murder case. motive in a murder case.
Evidence that criminal charges were previously filed against the Evidence that criminal charges were previously filed against the
defendant but were later withdrawn, and now the defendant faced murder defendant but were later withdrawn, and now the defendant faced murder
charges against the same victim, was admissible to establish a motive for the charges against the same victim, was admissible to establish a motive for the
killing. Commonwealth v. Reid, 571 Pa. 1, 37, 811 A.2d 530, 551 (2002), cert. killing. Commonwealth v. Reid, 571 Pa. 1, 37, 811 A.2d 530, 551 (2002), cert.
7. Prior Bad Acts That Are Not Convictions 7. Prior Bad Acts That Are Not Convictions
Evidence of prior bad acts is not limited to evidence of crimes that Evidence of prior bad acts is not limited to evidence of crimes that
have been proven beyond a reasonable doubt. It also encompasses both prior have been proven beyond a reasonable doubt. It also encompasses both prior
crimes and prior wrongs and acts, the latter by which, by their nature, often lack crimes and prior wrongs and acts, the latter by which, by their nature, often lack
definitive proof. Commonwealth v. Ardinger, 839 A.2d 1143 (Pa. Super. 2003). definitive proof. Commonwealth v. Ardinger, 839 A.2d 1143 (Pa. Super. 2003).
The Superior Court stated: The Superior Court stated:
However, Pa.R.Evid. 404(b) is not limited to evidence of crimes However, Pa.R.Evid. 404(b) is not limited to evidence of crimes
that have been proven beyond a reasonable doubt in court. It that have been proven beyond a reasonable doubt in court. It
encompasses both prior crimes and prior wrongs and acts, the encompasses both prior crimes and prior wrongs and acts, the
latter of which, by their nature, often lack definitive proof. latter of which, by their nature, often lack definitive proof.
While we do not find it error for the court to note that the While we do not find it error for the court to note that the
evidence sought to be admitted did not concern a conviction, evidence sought to be admitted did not concern a conviction,
rather an allegation, this fact alone is not determinative in a rather an allegation, this fact alone is not determinative in a
prejudice analysis. prejudice analysis.
Ardinger, 839 A.2d at 1145. Ardinger, 839 A.2d at 1145.
8. In Rebuttal to Dispel False Inferences 8. In Rebuttal to Dispel False Inferences
Evidence of prior bad acts is admissible in rebuttal to dispel false Evidence of prior bad acts is admissible in rebuttal to dispel false
testimony or inferences raised by the defendant or the defendants witnesses. testimony or inferences raised by the defendant or the defendants witnesses.
See Commonwealth v. Reid, 571 Pa. 1, 35, 811 A.2d 530, 550 (2002), cert. denied, See Commonwealth v. Reid, 571 Pa. 1, 35, 811 A.2d 530, 550 (2002), cert. denied,
Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013): A Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013): A
litigant opens the door to inadmissible evidence by presenting proof litigant opens the door to inadmissible evidence by presenting proof
that creates a false impression refuted by the otherwise prohibited that creates a false impression refuted by the otherwise prohibited
evidence. evidence.
The fact that the false inferences may have arisen through testimony on The fact that the false inferences may have arisen through testimony on
cross-examination does not alter the analysis. See Commonwealth v. Smith, 490 cross-examination does not alter the analysis. See Commonwealth v. Smith, 490
Pa. 380, 390, 416 A.2d 986, 990-001 (1980); Commonwealth v. Hickman, 453 Pa. Pa. 380, 390, 416 A.2d 986, 990-001 (1980); Commonwealth v. Hickman, 453 Pa.
427, 432, 309 A.2d 564, 567 (1973). Appellant plainly opened the door to the 427, 432, 309 A.2d 564, 567 (1973). Appellant plainly opened the door to the
rebuttal evidence with his answer on cross-examination that he never exhibited rebuttal evidence with his answer on cross-examination that he never exhibited
his x-rated video tapes to any of his grandchildren. his x-rated video tapes to any of his grandchildren.
C. Prerequisite for Use - Reasonable Notice C. Prerequisite for Use - Reasonable Notice
Typically, the prosecution must provide reasonable notice in advance of trial of Typically, the prosecution must provide reasonable notice in advance of trial of
its intent to introduce evidence of crimes, wrongs or other acts. Pa.R.E. 404(b)(3). The its intent to introduce evidence of crimes, wrongs or other acts. Pa.R.E. 404(b)(3). The
notice may be provided during trial if court excuses pretrial notice upon good cause notice may be provided during trial if court excuses pretrial notice upon good cause
shown. shown.
... ...
... ...
(3) Notice in a Criminal Case. In a criminal case the prosecutor (3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during must provide reasonable notice in advance of trial, or during
trial if the court excuses pretrial notice on good cause shown, trial if the court excuses pretrial notice on good cause shown,
of the general nature of any such evidence the prosecutor of the general nature of any such evidence the prosecutor
intends to introduce at trial.15 intends to introduce at trial.15
15 Pa.R.E. 404. 15 Pa.R.E. 404.
The requirement that the Commonwealth provide advance reasonable notice is The requirement that the Commonwealth provide advance reasonable notice is
not dependent upon a request by the defendant. Pa.R.E. 404, comment. not dependent upon a request by the defendant. Pa.R.E. 404, comment.
1. No Requirement that notice be in writing 1. No Requirement that notice be in writing
In Commonwealth v. Mawhinney, 915 A.2d 107 (Pa. Super. 2006), appeal In Commonwealth v. Mawhinney, 915 A.2d 107 (Pa. Super. 2006), appeal
denied, 594 Pa. 677, 932 A.2d 1287 (2007), the defendant was convicted of denied, 594 Pa. 677, 932 A.2d 1287 (2007), the defendant was convicted of
involuntary deviate sexual intercourse, sexual assault, and other related crimes; involuntary deviate sexual intercourse, sexual assault, and other related crimes;
the victim was his minor son. At trial, the Commonwealth sought to introduce the victim was his minor son. At trial, the Commonwealth sought to introduce
evidence of his past sexual conduct with his son. Defense counsel objected on evidence of his past sexual conduct with his son. Defense counsel objected on
the grounds of lack of reasonable notice. In ruling that there is no requirement in the grounds of lack of reasonable notice. In ruling that there is no requirement in
Pa.R.E. 404 that the notice be in writing, the Superior Court looked at the record Pa.R.E. 404 that the notice be in writing, the Superior Court looked at the record
and concluded that reasonable notice had been provided to the defense: the and concluded that reasonable notice had been provided to the defense: the
parties had discussed the prior sexual conduct at the pre-trial conferences, and parties had discussed the prior sexual conduct at the pre-trial conferences, and
there was no claim by defense counsel of unfair surprise. 915 A.2d at 110. there was no claim by defense counsel of unfair surprise. 915 A.2d at 110.
In Commonwealth v. Lynch, 57 A.3d 120 (Pa. Super. 2012), appeal denied, In Commonwealth v. Lynch, 57 A.3d 120 (Pa. Super. 2012), appeal denied,
63 A.3d 1245 (Pa. 2013), the trial court and the Superior Court found adequate 63 A.3d 1245 (Pa. 2013), the trial court and the Superior Court found adequate
reasonable notice when the Commonwealth had provided the defense with reasonable notice when the Commonwealth had provided the defense with
discovery which contained evidence of the prior bad acts. Id. at 126. Therefore, discovery which contained evidence of the prior bad acts. Id. at 126. Therefore,
no additional notice pursuant to Pa.R.E. 404(b)(3) was necessary. no additional notice pursuant to Pa.R.E. 404(b)(3) was necessary.
2. Defense must show prejudice 2. Defense must show prejudice
The Pennsylvania Supreme Court in Commonwealth v. Stallworth, The Pennsylvania Supreme Court in Commonwealth v. Stallworth,
566 Pa. 349, 365 n.2, 781 A.2d 110, 118 n. 2 (2001), and the Superior Court in 566 Pa. 349, 365 n.2, 781 A.2d 110, 118 n. 2 (2001), and the Superior Court in
Commonwealth v. Mawhinney, 915 A.2d 107, 110 (Pa. Super. 2006), appeal Commonwealth v. Mawhinney, 915 A.2d 107, 110 (Pa. Super. 2006), appeal
denied, 594 Pa. 677, 932 A.2d 1287 (2007), made a point in specifying that the denied, 594 Pa. 677, 932 A.2d 1287 (2007), made a point in specifying that the
defense made no showing or argument that the defense was prejudiced by the defense made no showing or argument that the defense was prejudiced by the
Commonwealths failure to strictly comply with the notice requirement of Pa.R.E. Commonwealths failure to strictly comply with the notice requirement of Pa.R.E.
404(b)(3). 404(b)(3).
D. Prerequisite for Use Probative Value D. Prerequisite for Use Probative Value
Under Pennsylvania law, evidence of prior crimes, wrongs or other bad acts Under Pennsylvania law, evidence of prior crimes, wrongs or other bad acts
offered for a legitimate evidentiary purpose is admissible only if its probative value offered for a legitimate evidentiary purpose is admissible only if its probative value
outweighs the potential for prejudice. See Commonwealth v. Baez, 554 Pa. 66, 88, 720 outweighs the potential for prejudice. See Commonwealth v. Baez, 554 Pa. 66, 88, 720
A.2d 711, 721 (1998), cert. denied, 528 U.S. 827, 120 S.Ct. 78, 145 L.Ed. 66 (1999).16 A.2d 711, 721 (1998), cert. denied, 528 U.S. 827, 120 S.Ct. 78, 145 L.Ed. 66 (1999).16
Pa.R.E. 404(b)(2) provides, in pertinent part: Pa.R.E. 404(b)(2) provides, in pertinent part:
... ...
16 Of course, Pa.R.E. 403 gives the trial court discretion to exclude relevant evidence if its probative value is outweighed by a danger of 16 Of course, Pa.R.E. 403 gives the trial court discretion to exclude relevant evidence if its probative value is outweighed by a danger of
one or more of the following events: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly one or more of the following events: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence. presenting cumulative evidence.
... ...
another purpose . . . only if the probative value of the evidence another purpose . . . only if the probative value of the evidence
outweighs its potential for unfair prejudice.17 outweighs its potential for unfair prejudice.17
When evaluating whether evidence of prior acts is so prejudicial that it should be When evaluating whether evidence of prior acts is so prejudicial that it should be
excluded, the court must consider the following factors as set forth by the Pennsylvania excluded, the court must consider the following factors as set forth by the Pennsylvania
Supreme Court in Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131 (2007): Supreme Court in Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131 (2007):
Evidence will not be prohibited merely because it is harmful Evidence will not be prohibited merely because it is harmful
to the defendant. This court has stated that it is not required to the defendant. This court has stated that it is not required
to sanitize the trial to eliminate all unpleasant facts from the to sanitize the trial to eliminate all unpleasant facts from the
jurys consideration where those facts are relevant to the issues jurys consideration where those facts are relevant to the issues
at hand and form part of the history and natural development at hand and form part of the history and natural development
of the events and offenses for which the defendant is charged. of the events and offenses for which the defendant is charged.
[Commonwealth v. Lark, 518 Pa. 290, 310, 543 A.2d 491, 501 [Commonwealth v. Lark, 518 Pa. 290, 310, 543 A.2d 491, 501
(1988)]. Moreover, we have upheld the admission of other (1988)]. Moreover, we have upheld the admission of other
crimes evidence, when relevant, even where the details of the crimes evidence, when relevant, even where the details of the
other crime were extremely grotesque and highly prejudicial. See other crime were extremely grotesque and highly prejudicial. See
Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835, 841 (1989) Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835, 841 (1989)
(upholding the trial courts admission of evidence that the (upholding the trial courts admission of evidence that the
defendant had committed a prior rape, including testimony from defendant had committed a prior rape, including testimony from
the prior rape victim); Commonwealth v. Gordon, 543 Pa. 513, 673 the prior rape victim); Commonwealth v. Gordon, 543 Pa. 513, 673
A.2d 866, 870 (1996)(allowing evidence of defendants previous A.2d 866, 870 (1996)(allowing evidence of defendants previous
sexual assaults). sexual assaults).
592 Pa. at 367, 925 A.2d at 141. In conducting this balancing test, 592 Pa. at 367, 925 A.2d at 141. In conducting this balancing test,
courts must consider factors such as the strength of the other courts must consider factors such as the strength of the other
crimes evidence, the similarities between the crimes, the time crimes evidence, the similarities between the crimes, the time
lapse between crimes, the need for the other crimes evidence, lapse between crimes, the need for the other crimes evidence,
the efficacy of alternative proof of the charged crime, and the the efficacy of alternative proof of the charged crime, and the
degree to which the evidence probably will rouse the jury to degree to which the evidence probably will rouse the jury to
overmastering hostility. McCormick, Evidence 190 at 811 overmastering hostility. McCormick, Evidence 190 at 811
(4th ed. 1992). See also, Commonwealth v. Frank, 395 Pa.Super. (4th ed. 1992). See also, Commonwealth v. Frank, 395 Pa.Super.
412, 577 A.2d 609 (1990)(enumerating balancing test factors, 412, 577 A.2d 609 (1990)(enumerating balancing test factors,
including ability for limiting instruction to reduce prejudice). including ability for limiting instruction to reduce prejudice).
Commonwealth v. Brown, 52 A.3d 320, 326-327 (Pa. Super. 2012), appeal denied, 62 Commonwealth v. Brown, 52 A.3d 320, 326-327 (Pa. Super. 2012), appeal denied, 62
A.3d 377 (Pa. 2013).18 A.3d 377 (Pa. 2013).18
17 Pa.R.E. 404(b)(2). 17 Pa.R.E. 404(b)(2).
18 Pa.R.E. 404(b)(3). See, Commonwealth v. Santiago, 822 A.2d 716, 728 (Pa. Super. 2003), appeal denied, 577 Pa. 679, 843 A.2d 18 Pa.R.E. 404(b)(3). See, Commonwealth v. Santiago, 822 A.2d 716, 728 (Pa. Super. 2003), appeal denied, 577 Pa. 679, 843 A.2d
1237(2004), cert. denied, 124 S.Ct. 2916, 159 L.Ed.2d 820 (2004) (the prejudicial impact of the jury learning that the defendant had been 1237(2004), cert. denied, 124 S.Ct. 2916, 159 L.Ed.2d 820 (2004) (the prejudicial impact of the jury learning that the defendant had been
on parole outweighed the probative value it would have led the jury to conclude that he had a prior serious record). on parole outweighed the probative value it would have led the jury to conclude that he had a prior serious record).
Commonwealth v. OBrien, 836 A.2d 966, 972 (Pa. Super. 2003), appeal Commonwealth v. OBrien, 836 A.2d 966, 972 (Pa. Super. 2003), appeal
denied, 577 Pa. 695, 845 A.2d 817 (2004): the Superior Court found the denied, 577 Pa. 695, 845 A.2d 817 (2004): the Superior Court found the
probative value of the evidence of the defendants prior sexual assaults probative value of the evidence of the defendants prior sexual assaults
of children outweighed its prejudicial effect because it tended to show of children outweighed its prejudicial effect because it tended to show
common scheme, plan or design exception to the general rule, in that all common scheme, plan or design exception to the general rule, in that all
of the charges stemmed from defendants sexually assaulting young boys of the charges stemmed from defendants sexually assaulting young boys
and all of the victims shared similar personal characteristics, and the and all of the victims shared similar personal characteristics, and the
crimes were not too remote in time. crimes were not too remote in time.
1. The Remoteness Test 1. The Remoteness Test
Remoteness is a factor in the determination of the probative value of prior Remoteness is a factor in the determination of the probative value of prior
bad acts or criminal conduct of the defendant under the common scheme, plan, bad acts or criminal conduct of the defendant under the common scheme, plan,
or design theory. Commonwealth v. Strong, 825 A.2d 658, 667 (Pa. Super. 2003), or design theory. Commonwealth v. Strong, 825 A.2d 658, 667 (Pa. Super. 2003),
appeal denied, 577 Pa. 702, 847 A.2d 59 2003), cert. denied, 544 U.S. 927, 125 appeal denied, 577 Pa. 702, 847 A.2d 59 2003), cert. denied, 544 U.S. 927, 125
S.Ct. 1652, 161 L.Ed.2d 489 (2005). S.Ct. 1652, 161 L.Ed.2d 489 (2005).
Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1283 (1989): Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1283 (1989):
holding that prior rape evidence properly admitted at trial for subsequent holding that prior rape evidence properly admitted at trial for subsequent
rape and murder occurring ten months later where crimes were similar in rape and murder occurring ten months later where crimes were similar in
geographic location, time, method of attack, and characteristics of victims. geographic location, time, method of attack, and characteristics of victims.
Commonwealth v. Luktisch, 680 A.2d 877, 878-879 (Pa. Super. 1996): in Commonwealth v. Luktisch, 680 A.2d 877, 878-879 (Pa. Super. 1996): in
prosecution for rape of defendants stepdaughter, evidence of uncharged prosecution for rape of defendants stepdaughter, evidence of uncharged
similar acts against defendants natural daughter was admissible as proof similar acts against defendants natural daughter was admissible as proof
of common scheme or plan; the six-year gap between uncharged acts and of common scheme or plan; the six-year gap between uncharged acts and
current charge did not prohibit evidence. current charge did not prohibit evidence.
Commonwealth v. Smith, 635 A.2d 1086, 1089 (Pa. Super. 1993): in Commonwealth v. Smith, 635 A.2d 1086, 1089 (Pa. Super. 1993): in
prosecution for rape against defendants two youngest daughters, prosecution for rape against defendants two youngest daughters,
testimony of defendants sexual assaults of oldest daughter, ten to testimony of defendants sexual assaults of oldest daughter, ten to
twenty years ago, supported exception for common plan. [T]he issue of twenty years ago, supported exception for common plan. [T]he issue of
remoteness under the common plan exception is determined by analyzing remoteness under the common plan exception is determined by analyzing
the time involved between each of the criminal incidents. the time involved between each of the criminal incidents.
Commonwealth v. Frank, 577 A.2d 609, 614 (Pa. Super. 1990), appeal Commonwealth v. Frank, 577 A.2d 609, 614 (Pa. Super. 1990), appeal
denied, 526 Pa. 629, 584 A.2d 312 (1990): In case of rape and related denied, 526 Pa. 629, 584 A.2d 312 (1990): In case of rape and related
charges: If the evidence reveals that the details of each criminal incident charges: If the evidence reveals that the details of each criminal incident
are nearly identical, the fact that the incidents are separated by a lapse are nearly identical, the fact that the incidents are separated by a lapse
of time will not likely prevent the offer of evidence unless the time is of time will not likely prevent the offer of evidence unless the time is
excessive. excessive.
Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893 (2002), cert. Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893 (2002), cert.
denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003): There is denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003): There is
no time limitation on when such evidence becomes inadmissible and the no time limitation on when such evidence becomes inadmissible and the
trial courts discretion has been upheld where abuse occurred thirty-four trial courts discretion has been upheld where abuse occurred thirty-four
months prior to murder. months prior to murder.
E. Prerequisite for Use Cautionary Instruction E. Prerequisite for Use Cautionary Instruction
An appropriate cautionary instruction should be given whenever evidence of a An appropriate cautionary instruction should be given whenever evidence of a
defendants prior criminal activity is admitted for one of the legitimate purposes under defendants prior criminal activity is admitted for one of the legitimate purposes under
Pa.R.E. 404(b). The instruction should be given at the time the evidence is admitted and Pa.R.E. 404(b). The instruction should be given at the time the evidence is admitted and
repeated in the final charge to the jury. repeated in the final charge to the jury.
In Commonwealth v. Claypool, 508 Pa. 198, 205, 495 A.2d 176, 179 (1985), In Commonwealth v. Claypool, 508 Pa. 198, 205, 495 A.2d 176, 179 (1985),
the Pennsylvania Supreme Court held that the trial court properly admitted the Pennsylvania Supreme Court held that the trial court properly admitted
evidence, with a cautionary instruction, of the defendants statements to evidence, with a cautionary instruction, of the defendants statements to
victim that he had committed prior rapes because it was relevant to his victim that he had committed prior rapes because it was relevant to his
attempts to scare her into submission. attempts to scare her into submission.
A cautionary instruction by the trial court lessens a claim of prejudice. A cautionary instruction by the trial court lessens a claim of prejudice.
Commonwealth v. Watkins, 577 Pa. 194, 215-216, 843 A.2d 1203, 1215-1216 Commonwealth v. Watkins, 577 Pa. 194, 215-216, 843 A.2d 1203, 1215-1216
(2003), cert. denied, 543 U.S. 960, 125 S.Ct. 450, 160 L.Ed.2d 324 (2004). (2003), cert. denied, 543 U.S. 960, 125 S.Ct. 450, 160 L.Ed.2d 324 (2004).
Commonwealth v. Spotz, 562 Pa. 498, 524-525, 756 A.2d 1139, 1153 (2000) Commonwealth v. Spotz, 562 Pa. 498, 524-525, 756 A.2d 1139, 1153 (2000)
(Spotz II), cert. denied, 532 U.S. 932, 121 S.Ct. 1381, 149 L.Ed.2d 307 (2001): (Spotz II), cert. denied, 532 U.S. 932, 121 S.Ct. 1381, 149 L.Ed.2d 307 (2001):
No prejudice shown when trial court clearly instructed jury that it could only No prejudice shown when trial court clearly instructed jury that it could only
consider other crimes evidence for relevant limited purposes and not merely consider other crimes evidence for relevant limited purposes and not merely
as evidence of appellants propensity to commit crimes. as evidence of appellants propensity to commit crimes.
7.10 SELECTED HEARSAY RULES AND EXCEPTIONS 7.10 SELECTED HEARSAY RULES AND EXCEPTIONS
A. Hearsay Generally Not Admissible A. Hearsay Generally Not Admissible
Hearsay is not admissible except Hearsay is not admissible except
1 - as provided in the Pennsylvania Rules of Evidence, 1 - as provided in the Pennsylvania Rules of Evidence,
2 - by other rules prescribed by the Pennsylvania Supreme 2 - by other rules prescribed by the Pennsylvania Supreme
Court, or Court, or
3 - by statute. 3 - by statute.
Pennsylvania Rule of Evidence 802 provides: Pennsylvania Rule of Evidence 802 provides:
Rule 802. The Rule Against Hearsay Rule 802. The Rule Against Hearsay
Hearsay is not admissible except as provided by these rules, Hearsay is not admissible except as provided by these rules,
by other rules prescribed by the Pennsylvania Supreme Court, by other rules prescribed by the Pennsylvania Supreme Court,
or by statute.19 or by statute.19
Pa.R.E. 801 provides the following definitions: Pa.R.E. 801 provides the following definitions:
Rule 801. Definitions That Apply to This Article Rule 801. Definitions That Apply to This Article
(a) Statement. Statement means a persons oral assertion, (a) Statement. Statement means a persons oral assertion,
written assertion, or nonverbal conduct, if the person intended written assertion, or nonverbal conduct, if the person intended
it as an assertion. it as an assertion.
(b) Declarant. Declarant means the person who made the (b) Declarant. Declarant means the person who made the
statement. statement.
(c) Hearsay. Hearsay means a statement that (c) Hearsay. Hearsay means a statement that
(1) the declarant does not make while testifying at the (1) the declarant does not make while testifying at the
current trial or hearing; and current trial or hearing; and
(2) a party offers in evidence to prove the truth of the (2) a party offers in evidence to prove the truth of the
matter asserted in the statement.20 matter asserted in the statement.20
When hearsay is offered against a defendant in a criminal case, the defendant When hearsay is offered against a defendant in a criminal case, the defendant
may interpose three separate objections: may interpose three separate objections:
1) admission of the evidence would violate the hearsay rule; 1) admission of the evidence would violate the hearsay rule;
2) admission of the evidence would violate defendants right to confront the 2) admission of the evidence would violate defendants right to confront the
witnesses against him under the Sixth Amendment to the United States witnesses against him under the Sixth Amendment to the United States
Constitution;21 and Constitution;21 and
3) admission of the evidence would violate defendants right of confrontation 3) admission of the evidence would violate defendants right of confrontation
under Article I, Section 9 of the Pennsylvania Constitution.22 under Article I, Section 9 of the Pennsylvania Constitution.22
Pennsylvania appellate courts have often defined hearsay as a statement, Pennsylvania appellate courts have often defined hearsay as a statement,
other than one made by the declarant while testifying at the trial or hearing, offered other than one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted. Commonwealth v. May, 584 Pa. in evidence to prove the truth of the matter asserted. Commonwealth v. May, 584 Pa.
640, 667, 887 A.2d 750, 766 (2005), cert. denied, 549 U.S. 832, 127 S.Ct. 58, 166 L.Ed.2d 640, 667, 887 A.2d 750, 766 (2005), cert. denied, 549 U.S. 832, 127 S.Ct. 58, 166 L.Ed.2d
54 (2006)(Defendant convicted of murder and involuntary deviate sexual intercourse; 54 (2006)(Defendant convicted of murder and involuntary deviate sexual intercourse;
defendants apology to victims daughters held to be hearsay). defendants apology to victims daughters held to be hearsay).
Note that hearsay included within hearsay is not excluded under the hearsay Note that hearsay included within hearsay is not excluded under the hearsay
19 Pa.R.E. 802. 19 Pa.R.E. 802.
20 Pa.R.E. 801. 20 Pa.R.E. 801.
21 The Sixth Amendment to the United States Constitution provides, in pertinent part: In all criminal prosecutions, the accused shall enjoy 21 The Sixth Amendment to the United States Constitution provides, in pertinent part: In all criminal prosecutions, the accused shall enjoy
the right to be confronted with the witnesses against him . . . . the right to be confronted with the witnesses against him . . . .
22 PA. Const. Art. I 9 provides, in pertinent part: In all criminal prosecutions the accused hath a right . . . to be confronted with the 22 PA. Const. Art. I 9 provides, in pertinent part: In all criminal prosecutions the accused hath a right . . . to be confronted with the
witnesses against him . . . . witnesses against him . . . .
rule if each part of the combined statements conforms with an exception to the hearsay rule if each part of the combined statements conforms with an exception to the hearsay
rule provided in these rules. Pa.R.E. 805. rule provided in these rules. Pa.R.E. 805.
B. Standard of Review B. Standard of Review
Questions concerning the admissibility of evidence lie within the sound discretion Questions concerning the admissibility of evidence lie within the sound discretion
of the trial court, and a reviewing court will not reverse the trial courts decision absent of the trial court, and a reviewing court will not reverse the trial courts decision absent
a clear abuse of discretion. Commonwealth v. Mitchell, 588 Pa. 19, 56, 902 A.2d 430, a clear abuse of discretion. Commonwealth v. Mitchell, 588 Pa. 19, 56, 902 A.2d 430,
452 (2006), cert. denied, 549 U.S. 1169, 127 S.Ct. 1126, 166 L.Ed.2d 897 (2007). The 452 (2006), cert. denied, 549 U.S. 1169, 127 S.Ct. 1126, 166 L.Ed.2d 897 (2007). The
Pennsylvania Supreme Court recently stated that the admission of evidence is solely Pennsylvania Supreme Court recently stated that the admission of evidence is solely
within the province of the trial court . . . . Commonwealth v. Murray, --- Pa. ---, 83 A.3d within the province of the trial court . . . . Commonwealth v. Murray, --- Pa. ---, 83 A.3d
137, 155 (2013). 137, 155 (2013).
Abuse of discretion is not merely an error of judgment, but rather where the Abuse of discretion is not merely an error of judgment, but rather where the
judgment is manifestly unreasonable or where the law is not applied or where the record judgment is manifestly unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill will. Commonwealth v. shows that the action is a result of partiality, prejudice, bias or ill will. Commonwealth v.
Aikens, 990 A.2d 1181, 1184-1185 (Pa. Super. 2010), appeal denied, 607 Pa. 694, 4 A.3d Aikens, 990 A.2d 1181, 1184-1185 (Pa. Super. 2010), appeal denied, 607 Pa. 694, 4 A.3d
157 (2010). 157 (2010).
C. Exceptions to the Hearsay Rule: Availability of Declarant Immaterial C. Exceptions to the Hearsay Rule: Availability of Declarant Immaterial
Rule 803 of the Pennsylvania Rules of Evidence was rewritten in 2013 and Rule 803 of the Pennsylvania Rules of Evidence was rewritten in 2013 and
provides that certain out of court statements are not excluded by the hearsay rule, even provides that certain out of court statements are not excluded by the hearsay rule, even
though the declarant may or may not be available as a witness. though the declarant may or may not be available as a witness.
Furthermore, an otherwise qualifying exception to the hearsay rule under Pa.R.E. Furthermore, an otherwise qualifying exception to the hearsay rule under Pa.R.E.
803 is not rendered inadmissible by a ruling that the declarant is incompetent to testify, 803 is not rendered inadmissible by a ruling that the declarant is incompetent to testify,
for example, because of age or immaturity. See Commonwealth v. Pronkoskie, 477 Pa. for example, because of age or immaturity. See Commonwealth v. Pronkoskie, 477 Pa.
132, 138 n. 5, 383 A.2d 858, 861 n. 5 (1978) (there is respectable authority for the 132, 138 n. 5, 383 A.2d 858, 861 n. 5 (1978) (there is respectable authority for the
proposition that an otherwise qualifying excited utterance is not rendered inadmissible proposition that an otherwise qualifying excited utterance is not rendered inadmissible
by a ruling that the declarant is incompetent to testify.). This is because the inherent by a ruling that the declarant is incompetent to testify.). This is because the inherent
reliability covered by the hearsay objection is based upon different criteria than the reliability covered by the hearsay objection is based upon different criteria than the
competency of the witness. Id. competency of the witness. Id.
Rule 803 provides: Rule 803 provides:
Article VIII. Hearsay Article VIII. Hearsay

Rule 803. Exceptions to the Rule Against Hearsay Rule 803. Exceptions to the Rule Against Hearsay
Regardless of Whether the Declarant Is Regardless of Whether the Declarant Is
Available as a Witness Available as a Witness
The following are not excluded by the rule against hearsay, regardless The following are not excluded by the rule against hearsay, regardless
of whether the declarant is available as a witness: of whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining (1) Present Sense Impression. A statement describing or explaining
an event or condition, made while or immediately after the declarant an event or condition, made while or immediately after the declarant
perceived it. perceived it.
(2) Excited Utterance. A statement relating to a startling event or (2) Excited Utterance. A statement relating to a startling event or
condition, made while the declarant was under the stress of excitement condition, made while the declarant was under the stress of excitement
that it caused. that it caused.
(3) Then-Existing Mental, Emotional, or Physical Condition. A (3) Then-Existing Mental, Emotional, or Physical Condition. A
statement of the declarants then-existing state of mind (such as motive, statement of the declarants then-existing state of mind (such as motive,
intent or plan) or emotional, sensory, or physical condition (such as intent or plan) or emotional, sensory, or physical condition (such as
mental feeling, pain, or bodily health), but not including a statement of mental feeling, pain, or bodily health), but not including a statement of
memory or belief to prove the fact remembered or believed unless it memory or belief to prove the fact remembered or believed unless it
relates to the validity or terms of the declarants will. relates to the validity or terms of the declarants will.
(4) Statement Made for Medical Diagnosis or Treatment. A statement (4) Statement Made for Medical Diagnosis or Treatment. A statement
that: that:
(A) is made for--and is reasonably pertinent to--medical (A) is made for--and is reasonably pertinent to--medical
treatment or diagnosis in contemplation of treatment; and treatment or diagnosis in contemplation of treatment; and
(B) describes medical history, past or present symptoms, pain, (B) describes medical history, past or present symptoms, pain,
or sensations, or the inception or general character of the cause or sensations, or the inception or general character of the cause
or external source thereof, insofar as reasonably pertinent to or external source thereof, insofar as reasonably pertinent to
treatment, or diagnosis in contemplation of treatment. treatment, or diagnosis in contemplation of treatment.
(5) Recorded Recollection (Not Adopted) (5) Recorded Recollection (Not Adopted)
(6) Records of a Regularly Conducted Activity. A record (which (6) Records of a Regularly Conducted Activity. A record (which
includes a memorandum, report, or data compilation in any form) of an includes a memorandum, report, or data compilation in any form) of an
act, event or condition if, act, event or condition if,
(A) the record was made at or near the time by--or from (A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge; information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted (B) the record was kept in the course of a regularly conducted
activity of a business, which term includes business, institution, activity of a business, which term includes business, institution,
association, profession, occupation, and calling of every kind, association, profession, occupation, and calling of every kind,
whether or not conducted for profit; whether or not conducted for profit;
(C) making the record was a regular practice of that activity; (C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the (D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting complies with Rule 902(11) or (12) or with a statute permitting
certification; and certification; and
(E) neither the source of information nor other circumstances (E) neither the source of information nor other circumstances
indicate a lack of trustworthiness. indicate a lack of trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity (Not (7) Absence of a Record of a Regularly Conducted Activity (Not
Adopted) Adopted)
(8) Public Records (Not Adopted) (8) Public Records (Not Adopted)
(9) Public Records of Vital Statistics (Not Adopted) (9) Public Records of Vital Statistics (Not Adopted)
(10) Absence of a Public Record (Not Adopted) (10) Absence of a Public Record (Not Adopted)
(11) Records of Religious Organizations Concerning Personal or (11) Records of Religious Organizations Concerning Personal or
Family History. A statement of birth, legitimacy, ancestry, marriage, Family History. A statement of birth, legitimacy, ancestry, marriage,
divorce, death, relationship by blood or marriage, or similar facts of divorce, death, relationship by blood or marriage, or similar facts of
personal or family history, contained in a regularly kept record of a personal or family history, contained in a regularly kept record of a
religious organization. religious organization.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A (12) Certificates of Marriage, Baptism, and Similar Ceremonies. A
statement of fact contained in a certificate: statement of fact contained in a certificate:
(A) made by a person who is authorized by a religious (A) made by a person who is authorized by a religious
organization or by law to perform the act certified; organization or by law to perform the act certified;
(B) attesting that the person performed a marriage or similar (B) attesting that the person performed a marriage or similar
ceremony or administered a sacrament; and ceremony or administered a sacrament; and
(C) purporting to have been issued at the time of the act or (C) purporting to have been issued at the time of the act or
within a reasonable time after it. within a reasonable time after it.
(13) Family Records. A statement of fact about personal or family (13) Family Records. A statement of fact about personal or family
history contained in a family record, such as a Bible, genealogy, chart, history contained in a family record, such as a Bible, genealogy, chart,
engraving on a ring, inscription on a portrait, or engraving on an urn or engraving on a ring, inscription on a portrait, or engraving on an urn or
burial marker. burial marker.
(14) Records of Documents That Affect an Interest in Property. The (14) Records of Documents That Affect an Interest in Property. The
record of a document that purports to establish or affect an interest in record of a document that purports to establish or affect an interest in
property if: property if:
(A) the record is admitted to prove the content of the original (A) the record is admitted to prove the content of the original
recorded document, along with its signing and its delivery by recorded document, along with its signing and its delivery by
each person who purports to have signed it; each person who purports to have signed it;
(B) the record is kept in a public office; and (B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that kind in (C) a statute authorizes recording documents of that kind in
that office. that office.
(15) Statements in Documents That Affect an Interest in Property. (15) Statements in Documents That Affect an Interest in Property.
A statement contained in a document, other than a will, that purports A statement contained in a document, other than a will, that purports
to establish or affect an interest in property if the matter stated was to establish or affect an interest in property if the matter stated was
relevant to the documents purpose--unless later dealings with the relevant to the documents purpose--unless later dealings with the
property are inconsistent with the truth of the statement or the purport property are inconsistent with the truth of the statement or the purport
of the document. of the document.
(16) Statements in Ancient Documents. A statement in a document (16) Statements in Ancient Documents. A statement in a document
that is at least 30 years old and whose authenticity is established. that is at least 30 years old and whose authenticity is established.
(17) Market Reports and Similar Commercial Publications. Market (17) Market Reports and Similar Commercial Publications. Market
quotations, lists, directories, or other compilations that are generally quotations, lists, directories, or other compilations that are generally
relied on by the public or by persons in particular occupations. relied on by the public or by persons in particular occupations.
(18) Statements in Learned Treatises, Periodicals, or Pamphlets (18) Statements in Learned Treatises, Periodicals, or Pamphlets
(Not Adopted) (Not Adopted)
(19) Reputation Concerning Personal or Family History. A reputation (19) Reputation Concerning Personal or Family History. A reputation
among a persons family by blood, adoption, or marriage--or among a among a persons family by blood, adoption, or marriage--or among a
persons associates or in the community--concerning the persons birth, persons associates or in the community--concerning the persons birth,
adoption, legitimacy, ancestry, marriage, divorce, death, relationship adoption, legitimacy, ancestry, marriage, divorce, death, relationship
by blood, adoption, or marriage, or similar facts of personal or family by blood, adoption, or marriage, or similar facts of personal or family
history. history.
(20) Reputation Concerning Boundaries or General History. A (20) Reputation Concerning Boundaries or General History. A
reputation in a community--arising before the controversy--concerning reputation in a community--arising before the controversy--concerning
boundaries of land in the community or customs that affect the land, or boundaries of land in the community or customs that affect the land, or
concerning general historical events important to that community, state concerning general historical events important to that community, state
or nation. or nation.
(21) Reputation Concerning Character. A reputation among a persons (21) Reputation Concerning Character. A reputation among a persons
associates or in the community concerning the persons character. associates or in the community concerning the persons character.
(22) Judgment of a Previous Conviction (Not Adopted) (22) Judgment of a Previous Conviction (Not Adopted)
(23) Judgments Involving Personal, Family, or General History or (23) Judgments Involving Personal, Family, or General History or
a Boundary (Not Adopted) a Boundary (Not Adopted)
(24) Other Exceptions (Not Adopted) (24) Other Exceptions (Not Adopted)
(25) An Opposing Partys Statement. The statement is offered against (25) An Opposing Partys Statement. The statement is offered against
an opposing party and: an opposing party and:
(A) was made by the party in an individual or representative (A) was made by the party in an individual or representative
capacity; capacity;
(B) is one the party manifested that it adopted or believed to (B) is one the party manifested that it adopted or believed to
be true; be true;
(C) was made by a person whom the party authorized to make (C) was made by a person whom the party authorized to make
a statement on the subject; a statement on the subject;
(D) was made by the partys agent or employee on a matter (D) was made by the partys agent or employee on a matter
within the scope of that relationship and while it existed; or within the scope of that relationship and while it existed; or
(E) was made by the partys coconspirator during and in (E) was made by the partys coconspirator during and in
furtherance of the conspiracy. furtherance of the conspiracy.
The statement may be considered but does not by itself establish the The statement may be considered but does not by itself establish the
declarants authority under (C); the existence or scope of the relationship declarants authority under (C); the existence or scope of the relationship
under (D); or the existence of the conspiracy or participation in it under under (D); or the existence of the conspiracy or participation in it under
(E). (E).
Res gestae statements, such as excited utterances, present sense impressions, and Res gestae statements, such as excited utterances, present sense impressions, and
expressions of present bodily conditions are normally excluded from the hearsay rule, expressions of present bodily conditions are normally excluded from the hearsay rule,
because the reliability of such statements are established by the statement being made because the reliability of such statements are established by the statement being made
contemporaneous with a provoking event. Commonwealth v. Murray, --- Pa. ---, 83 contemporaneous with a provoking event. Commonwealth v. Murray, --- Pa. ---, 83
A.3d 137, 157 (2013). A.3d 137, 157 (2013).
1. Present Sense Impression Pa.R.E., Rule 803(1) 1. Present Sense Impression Pa.R.E., Rule 803(1)
Present Sense Impression. A statement describing or Present Sense Impression. A statement describing or
explaining an event or condition, made while or immediately explaining an event or condition, made while or immediately
after the declarant perceived it.23 after the declarant perceived it.23
Present-sense impression exception to the hearsay rule permits testimony Present-sense impression exception to the hearsay rule permits testimony
of declarations concerning conditions or nonexciting events which declarant is of declarations concerning conditions or nonexciting events which declarant is
observing at time of his declaration. Commonwealth v. Cunningham, 805 A.2d observing at time of his declaration. Commonwealth v. Cunningham, 805 A.2d
566, 573, (Pa. Super. 2002), appeal denied, 573 Pa. 663, 820 A.2d 703 (2002). 566, 573, (Pa. Super. 2002), appeal denied, 573 Pa. 663, 820 A.2d 703 (2002).
For this exception to apply, declarant need not be excited or otherwise For this exception to apply, declarant need not be excited or otherwise
emotionally affected by the event or condition perceived. The trustworthiness of emotionally affected by the event or condition perceived. The trustworthiness of
the statement arises from its timing. The requirement of contemporaneousness, the statement arises from its timing. The requirement of contemporaneousness,
or near contemporaneousness, reduces the chance of premeditated prevarication or near contemporaneousness, reduces the chance of premeditated prevarication
or loss of memory.24 or loss of memory.24
23 Pa.R.E. 803(1). 23 Pa.R.E. 803(1).

24 Pa.R.E. 803(1), comment. 24 Pa.R.E. 803(1), comment.
Commonwealth v. Harper, 614 A.2d 1180, 1183 (Pa. Super. 1992), appeal Commonwealth v. Harper, 614 A.2d 1180, 1183 (Pa. Super. 1992), appeal
denied, 533 Pa. 649, 624 A.2d 109 (1993): in prosecution for rape and denied, 533 Pa. 649, 624 A.2d 109 (1993): in prosecution for rape and
other charges, trial court properly admitted testimony of police officer other charges, trial court properly admitted testimony of police officer
who repeated statement of defendants girlfriend, i.e., when she looked who repeated statement of defendants girlfriend, i.e., when she looked
into the window of the victims house, she observed a sock on the victims into the window of the victims house, she observed a sock on the victims
bed which belonged to her boyfriend. This was within present sense bed which belonged to her boyfriend. This was within present sense
impression exception to hearsay rule and admissible; the girlfriends impression exception to hearsay rule and admissible; the girlfriends
statement was contemporaneous verbalization of her observation and statement was contemporaneous verbalization of her observation and
there was no opportunity for retrospective thought on her part prior to there was no opportunity for retrospective thought on her part prior to
her relating her impression to the police officer. her relating her impression to the police officer.
2. Excited Utterance Pa.R.E., Rule 803(2) 2. Excited Utterance Pa.R.E., Rule 803(2)
Excited utterance. A statement relating to a startling event Excited utterance. A statement relating to a startling event
or condition made while the declarant was under the stress or condition made while the declarant was under the stress
of excitement that it caused.25 of excitement that it caused.25
An excited utterance is a statement relating to a startling event or condition An excited utterance is a statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event made while the declarant was under the stress of excitement caused by the event
or condition.26 As is well-settled, excited utterances fall under the common law or condition.26 As is well-settled, excited utterances fall under the common law
concept of res gestae. Commonwealth v. Murray, --- Pa. ---, 83 A.3d 137, 157 concept of res gestae. Commonwealth v. Murray, --- Pa. ---, 83 A.3d 137, 157
(2013). (2013).
While the excited utterance exception is codified in Rule 803(2), the While the excited utterance exception is codified in Rule 803(2), the
common law definition remains applicable: common law definition remains applicable:
[A] spontaneous declaration by a person whose mind has [A] spontaneous declaration by a person whose mind has
been suddenly made subject to an overpowering emotion been suddenly made subject to an overpowering emotion
caused by some unexpected and shocking occurrence, which caused by some unexpected and shocking occurrence, which
that person has just participated in or closely witnessed, that person has just participated in or closely witnessed,
and made in reference to some phase of that occurrence and made in reference to some phase of that occurrence
which he perceived, and this declaration must be made so which he perceived, and this declaration must be made so
near the occurrence both in time and place as to exclude the near the occurrence both in time and place as to exclude the
likelihood of its having emanated in whole or in part from his likelihood of its having emanated in whole or in part from his
reflective faculties.... Thus, it must be shown first, that [the reflective faculties.... Thus, it must be shown first, that [the
declarant] had witnessed an event sufficiently startling and declarant] had witnessed an event sufficiently startling and
so close in point of time as to render her reflective thought so close in point of time as to render her reflective thought
processes inoperable and, second, that her declarations were processes inoperable and, second, that her declarations were
a spontaneous reaction to that startling event. a spontaneous reaction to that startling event.
Commonwealth v. Murray, --- Pa. ---, 83 A.3d 137, 157-158 (2013) Commonwealth v. Murray, --- Pa. ---, 83 A.3d 137, 157-158 (2013)
quoting Commonwealth v. Sherwood, 603 Pa. 92, 112-113, 982 A.2d 483, 495- quoting Commonwealth v. Sherwood, 603 Pa. 92, 112-113, 982 A.2d 483, 495-
496 (2009). 496 (2009).
25 Pa.R.E. 803(2). 25 Pa.R.E. 803(2).

Although it does require an event that is startling, it is important to Although it does require an event that is startling, it is important to
remember that the excited utterance: remember that the excited utterance:
1 need not describe or explain the startling event 1 need not describe or explain the startling event
because it only has to relate to it, and because it only has to relate to it, and
2 - need not be made contemporaneously with, or 2 - need not be made contemporaneously with, or
immediately after, the startling event. immediately after, the startling event.
It is sufficient if the stress of excitement created by the startling event or condition It is sufficient if the stress of excitement created by the startling event or condition
persists as a substantial factor in provoking the utterance. persists as a substantial factor in provoking the utterance.
The comments to Pa.R.E. 803(2) provide: The comments to Pa.R.E. 803(2) provide:
There is no set time interval following a startling event There is no set time interval following a startling event
or condition after which an utterance relating to it will be or condition after which an utterance relating to it will be
ineligible for exception to the hearsay rule as an excited ineligible for exception to the hearsay rule as an excited
utterance. utterance.
Commonwealth v. Zukauskas, 501 Pa. 500, 504, 462 A.2d 236, 238 Commonwealth v. Zukauskas, 501 Pa. 500, 504, 462 A.2d 236, 238
(1983): Time elapsed is an important consideration, but there are no set (1983): Time elapsed is an important consideration, but there are no set
formulae: formulae:
Length of time is an element that must be weighed Length of time is an element that must be weighed
along with other considerations. It varies with the along with other considerations. It varies with the
circumstances and from case to case. It does not alone circumstances and from case to case. It does not alone
decide admissibility. The question is not how long one or decide admissibility. The question is not how long one or
when one is seized by an event, but rather was he seized when one is seized by an event, but rather was he seized
at all. Time itself is not dispositive and is determined, ad at all. Time itself is not dispositive and is determined, ad
hoc, case by case. hoc, case by case.
Additionally, the excited utterance exception applies if it were made in response Additionally, the excited utterance exception applies if it were made in response
to questioning as well as those made after the event. Commonwealth v. Lester, to questioning as well as those made after the event. Commonwealth v. Lester,
554 Pa. 644, 657, 722 A.2d 997, 1003 (1998) (disapproved on other grounds in 554 Pa. 644, 657, 722 A.2d 997, 1003 (1998) (disapproved on other grounds in
Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003)). Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385 (2003)).
Commonwealth v. Crosby, 791 A.2d 366, 370-371 (Pa. Super. 2002): in Commonwealth v. Crosby, 791 A.2d 366, 370-371 (Pa. Super. 2002): in
a prosecution for indecent assault, the trial court properly admitted the a prosecution for indecent assault, the trial court properly admitted the
testimony of the victims mother as to what the victim had told her, i.e., the testimony of the victims mother as to what the victim had told her, i.e., the
indecent assault when she was alone with the defendant. The testimony indecent assault when she was alone with the defendant. The testimony
was admissible under the excited utterance exception to the hearsay rule was admissible under the excited utterance exception to the hearsay rule
because the victims statements were made within minutes of the event, because the victims statements were made within minutes of the event,
the victims mother stated that the victim had lowered her head while she the victims mother stated that the victim had lowered her head while she
talked, which indicated that she was upset, and the victim cried while she talked, which indicated that she was upset, and the victim cried while she
described the event. described the event.
Commonwealth v. Clark, 512 A.2d 1282, 1284 (Pa. Super. 1986), appeal Commonwealth v. Clark, 512 A.2d 1282, 1284 (Pa. Super. 1986), appeal
denied, 514 Pa. 638, 523 A.2d 345 (1987): trial court properly admitted denied, 514 Pa. 638, 523 A.2d 345 (1987): trial court properly admitted
hearsay testimony of police officer, under excitable utterance exception hearsay testimony of police officer, under excitable utterance exception
to hearsay rule, regarding victims statement to him that defendant had to hearsay rule, regarding victims statement to him that defendant had
penetrated her, which statement was made immediately after the rape penetrated her, which statement was made immediately after the rape
occurred. occurred.
Commonwealth v. Pettiford, 402 A.2d 532, 533 (Pa. Super. 1979): The Commonwealth v. Pettiford, 402 A.2d 532, 533 (Pa. Super. 1979): The
trial court properly admitted the hearsay testimony of three witnesses, trial court properly admitted the hearsay testimony of three witnesses,
one of whom was allowed to recount the victims spontaneous statements one of whom was allowed to recount the victims spontaneous statements
regarding the rape in great detail, under the excitable utterance exception. regarding the rape in great detail, under the excitable utterance exception.
The victim had been subjected to a forcible rape and was in a hysterical The victim had been subjected to a forcible rape and was in a hysterical
state of mind when, 15 to 20 minutes after the rape occurred, the victim state of mind when, 15 to 20 minutes after the rape occurred, the victim
recounted its details to the witnesses. recounted its details to the witnesses.
3. State of Mind Exception Pa.R.E., Rule 803(3) 3. State of Mind Exception Pa.R.E., Rule 803(3)
Pa.R.E. 803(3) Pa.R.E. 803(3)

Then-Existing Mental, Emotional, or Physical Condition. Then-Existing Mental, Emotional, or Physical Condition.
A statement of the declarants then-existing state of mind A statement of the declarants then-existing state of mind
(such as motive, intent or plan) or emotional, sensory, or (such as motive, intent or plan) or emotional, sensory, or
physical condition (such as mental feeling, pain, or bodily physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief health), but not including a statement of memory or belief
to prove the fact remembered or believed unless it relates to prove the fact remembered or believed unless it relates
to the validity or terms of the declarants will.27 to the validity or terms of the declarants will.27
The state of mind exception to the hearsay rule traditionally applies to the The state of mind exception to the hearsay rule traditionally applies to the
declarants state of mind, emotion, sensation or physical condition such as intent, declarants state of mind, emotion, sensation or physical condition such as intent,
plan, motive, design, mental feeling, pain, and bodily health. Commonwealth v. plan, motive, design, mental feeling, pain, and bodily health. Commonwealth v.
Levanduski, 907 A.2d 3, 19 (Pa. Super. 2006), appeal denied, 591 Pa. 711, 919 Levanduski, 907 A.2d 3, 19 (Pa. Super. 2006), appeal denied, 591 Pa. 711, 919
A.2d 955 (2007), cert. denied, 552 U.S. 823, 128 S.Ct. 166, 169 L.Ed.2d 33 (2007). A.2d 955 (2007), cert. denied, 552 U.S. 823, 128 S.Ct. 166, 169 L.Ed.2d 33 (2007).
It cannot be used to prove the state of mind of the defendant or victim if they are It cannot be used to prove the state of mind of the defendant or victim if they are
not the declarant. See id. In Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057 not the declarant. See id. In Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057
(2001), the Pennsylvania Supreme Court said: (2001), the Pennsylvania Supreme Court said:
Pursuant to the state of mind hearsay exception, where Pursuant to the state of mind hearsay exception, where
a declarants out-of-court statements demonstrate [the a declarants out-of-court statements demonstrate [the
declarants] state of mind, are made in a natural manner, and declarants] state of mind, are made in a natural manner, and
are material and relevant, they are admissible pursuant to are material and relevant, they are admissible pursuant to
the exception. Out-of-court declarations that fall within the the exception. Out-of-court declarations that fall within the
state of mind hearsay exception are still subject to general state of mind hearsay exception are still subject to general
evidentiary rules governing competency and relevancy. evidentiary rules governing competency and relevancy.
Accordingly, whatever purpose the statement is offered for, Accordingly, whatever purpose the statement is offered for,
27 Pa.R.E. 803(3). 27 Pa.R.E. 803(3).
be it to show the declarants intention, familiarity, or sanity, be it to show the declarants intention, familiarity, or sanity,
that purpose must be a factor in issue, that is, relevant. that purpose must be a factor in issue, that is, relevant.
Evidence is relevant if it logically tends to establish a material Evidence is relevant if it logically tends to establish a material
fact in the case, if it tends to make a fact at issue more or fact in the case, if it tends to make a fact at issue more or
less probable, or if it supports a reasonable inference or less probable, or if it supports a reasonable inference or
presumption regarding the existence of a material fact. presumption regarding the existence of a material fact.
566 Pa. at 26, 777 A.2d 1060-1061 (emphasis added). 566 Pa. at 26, 777 A.2d 1060-1061 (emphasis added).
However, in Commonwealth v. Chandler, 554 Pa. 401, 721 A.2d 1040 However, in Commonwealth v. Chandler, 554 Pa. 401, 721 A.2d 1040
(1998), a murder case, the Pennsylvania Supreme Court affirmed the trial courts (1998), a murder case, the Pennsylvania Supreme Court affirmed the trial courts
decision to admit, under the state of mind exception, third-party testimony decision to admit, under the state of mind exception, third-party testimony
about a victims statements regarding her relationship with the accused and her about a victims statements regarding her relationship with the accused and her
negative feelings about the accused. 554 Pa. at 411, 721 A.2d at 1045. The state negative feelings about the accused. 554 Pa. at 411, 721 A.2d at 1045. The state
of mind testimony was admissible as exceptions to the hearsay rule because the of mind testimony was admissible as exceptions to the hearsay rule because the
testimony went to the presence of ill will, malice or motive for the murder. testimony went to the presence of ill will, malice or motive for the murder.
Similarly, in Commonwealth v. Sneeringer, 668 A.2d 1167 (Pa. Super. Similarly, in Commonwealth v. Sneeringer, 668 A.2d 1167 (Pa. Super.
1995), appeal denied, 545 Pa. 651, 680 A.2d 1161 (1996), the Superior Court 1995), appeal denied, 545 Pa. 651, 680 A.2d 1161 (1996), the Superior Court
affirmed the trial courts decision to allow a witness to testify about statements affirmed the trial courts decision to allow a witness to testify about statements
attributed to the victim and her expressed intention to sever her relationship attributed to the victim and her expressed intention to sever her relationship
with the accused. This testimony, admitted as an exception to the hearsay rule with the accused. This testimony, admitted as an exception to the hearsay rule
under the state of mind exception, was relevant to the defendants motive for under the state of mind exception, was relevant to the defendants motive for
killing the victim. killing the victim.
Commonwealth v. Jorden, 482 A.2d 573, 579 (Pa. Super. 1984): in rape Commonwealth v. Jorden, 482 A.2d 573, 579 (Pa. Super. 1984): in rape
case in which any hearsay objection was waived, trial court properly case in which any hearsay objection was waived, trial court properly
admitted testimony of investigating detectives observations of the admitted testimony of investigating detectives observations of the
victim, four hours after the rape, to demonstrate the victims state victim, four hours after the rape, to demonstrate the victims state
of mind at the time of her statement. The complainant was crying, of mind at the time of her statement. The complainant was crying,
sobbing and trembling, which helped to explain the inconsistencies in sobbing and trembling, which helped to explain the inconsistencies in
her testimony because she was upset. her testimony because she was upset.
Commonwealth v. Luster, 71 A.3d 1029, 1041 (Pa. Super. 2013): Commonwealth v. Luster, 71 A.3d 1029, 1041 (Pa. Super. 2013):
hearsay evidence concerning the victims state of mind is admissible hearsay evidence concerning the victims state of mind is admissible
only where the victims state of mind is a factor in issue at trial. only where the victims state of mind is a factor in issue at trial.
4. Statements for Purposes of Medical Diagnosis or Treatment- Pa.R.E., 4. Statements for Purposes of Medical Diagnosis or Treatment- Pa.R.E.,
Rule 803(4) Rule 803(4)
Pa.R.E. 803(4). Pa.R.E. 803(4).

Statement Made for Medical Diagnosis or Treatment. Statement Made for Medical Diagnosis or Treatment.
A statement that: A statement that:
(A) is made for--and is reasonably pertinent to--medical (A) is made for--and is reasonably pertinent to--medical
treatment or diagnosis in contemplation of treatment; and treatment or diagnosis in contemplation of treatment; and
(B) describes medical history, past or present symptoms, (B) describes medical history, past or present symptoms,
pain, or sensations, or the inception or general character pain, or sensations, or the inception or general character
of the cause or external source thereof, insofar as of the cause or external source thereof, insofar as
reasonably pertinent to treatment, or diagnosis in reasonably pertinent to treatment, or diagnosis in
contemplation of treatment.28 contemplation of treatment.28
In Commonwealth v. Smith, 545 Pa. 487, 681 A.2d 1288, (1996), the In Commonwealth v. Smith, 545 Pa. 487, 681 A.2d 1288, (1996), the
Supreme Court stated that there are essentially two requirements for a statement Supreme Court stated that there are essentially two requirements for a statement
to come within this exception: to come within this exception:
First, the declarant must make the statement for the First, the declarant must make the statement for the
purpose of receiving medical treatment; and purpose of receiving medical treatment; and
Second, the statement must be necessary and proper Second, the statement must be necessary and proper
for diagnosis and treatment. for diagnosis and treatment.
Id. at 493, 681 A.2d at 1291. Note that statements are only admissible if they are Id. at 493, 681 A.2d at 1291. Note that statements are only admissible if they are
made in contemplation of treatment. The rationale for admitting statements for made in contemplation of treatment. The rationale for admitting statements for
purposes of treatment is that the declarant has a very strong motivation to speak purposes of treatment is that the declarant has a very strong motivation to speak
truthfully.29 truthfully.29
This exception is not limited to statements made to physicians. Statements This exception is not limited to statements made to physicians. Statements
to a nurse have been held to be admissible. Commonwealth v. Smith, 545 Pa. at to a nurse have been held to be admissible. Commonwealth v. Smith, 545 Pa. at
494, 681 A.2d at 1292. 494, 681 A.2d at 1292.
In 1972, the Pennsylvania Supreme Court expanded the interpretation In 1972, the Pennsylvania Supreme Court expanded the interpretation
of this exception to permit medical testimony regarding the cause of the injury of this exception to permit medical testimony regarding the cause of the injury
as well as testimony regarding the patients symptoms and sensations. See as well as testimony regarding the patients symptoms and sensations. See
Commonwealth v. D.J.A., 800 A.2d 965, 975-976 (Pa. Super. 2002) (en banc), Commonwealth v. D.J.A., 800 A.2d 965, 975-976 (Pa. Super. 2002) (en banc),
(a) Prohibition: Statements for Purposes of Litigation (a) Prohibition: Statements for Purposes of Litigation
Statements made to persons retained solely for the purpose of litigation are Statements made to persons retained solely for the purpose of litigation are
not admissible under this rule.30 not admissible under this rule.30
(b) Prohibition: Identification Statements (b) Prohibition: Identification Statements
Statements as to causation may be admissible, but statements as to fault or Statements as to causation may be admissible, but statements as to fault or
28 Pa.R.E. 803(4). 28 Pa.R.E. 803(4).
29 Id. 29 Id.
identification of the person inflicting harm have been held to be inadmissible. identification of the person inflicting harm have been held to be inadmissible.
Commonwealth v. Smith, 545 Pa. 487, 496, 681 A.2d 1288, 1293 (1996). Commonwealth v. Smith, 545 Pa. 487, 496, 681 A.2d 1288, 1293 (1996).
Commonwealth v. D.J.A., 800 A.2d 965, 976-977 (Pa. Super. 2002) Commonwealth v. D.J.A., 800 A.2d 965, 976-977 (Pa. Super. 2002)
(en banc), appeal denied, 579 Pa. 700, 857 A.2d 677 (2004): in case in (en banc), appeal denied, 579 Pa. 700, 857 A.2d 677 (2004): in case in
which defendant was charged with rape, involuntary deviate sexual which defendant was charged with rape, involuntary deviate sexual
intercourse, indecent assault, corruption of minors, and endangering intercourse, indecent assault, corruption of minors, and endangering
the welfare of children, trial court properly held as inadmissible the the welfare of children, trial court properly held as inadmissible the
minor victims statement to her doctor, which statement in addition to minor victims statement to her doctor, which statement in addition to
explaining her condition, identified the defendant as the assailant. The explaining her condition, identified the defendant as the assailant. The
Superior Court rejected the prosecutions argument that the threat of Superior Court rejected the prosecutions argument that the threat of
a sexually transmitted disease exempts sexual assault cases from the a sexually transmitted disease exempts sexual assault cases from the
general rule that identification of the person inflicting the harm is not general rule that identification of the person inflicting the harm is not
admissible under this hearsay exception. admissible under this hearsay exception.
5. Records of Regularly Conducted Activity Pa.R.E., Rule 803(6) 5. Records of Regularly Conducted Activity Pa.R.E., Rule 803(6)
Pa.R.E., Rule 803(6) Pa.R.E., Rule 803(6)

Records of a Regularly Conducted Activity. Records of a Regularly Conducted Activity.
A record (which includes a memorandum, report, or data A record (which includes a memorandum, report, or data
compilation in any form) of an act, event or condition if, compilation in any form) of an act, event or condition if,
(A) the record was made at or near the time by--or from (A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge; information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly (B) the record was kept in the course of a regularly
conducted activity of a business, which term conducted activity of a business, which term
includes business, institution, association, profession, includes business, institution, association, profession,
occupation, and calling of every kind, whether or not occupation, and calling of every kind, whether or not
conducted for profit; conducted for profit;
(C) making the record was a regular practice of that (C) making the record was a regular practice of that
activity; activity;
(D) all these conditions are shown by the testimony (D) all these conditions are shown by the testimony
of the custodian or another qualified witness, or by a of the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12) or certification that complies with Rule 902(11) or (12) or
with a statute permitting certification; and with a statute permitting certification; and
(E) neither the source of information nor other (E) neither the source of information nor other
circumstances indicate a lack of trustworthiness.31 circumstances indicate a lack of trustworthiness.31
This is known as the business record exception. The purpose of the This is known as the business record exception. The purpose of the
31 Pa.R.E. 803(6). 31 Pa.R.E. 803(6).
business records exception to the hearsay rule is to permit the admission of records business records exception to the hearsay rule is to permit the admission of records
made in the regular course of business where the sources of information, method, made in the regular course of business where the sources of information, method,
and time of preparation are such as to justify their admission. Commonwealth and time of preparation are such as to justify their admission. Commonwealth
v. McEnany, 732 A.2d 1263, 1272 (Pa. Super. 1999), appeal dismissed as v. McEnany, 732 A.2d 1263, 1272 (Pa. Super. 1999), appeal dismissed as
improvidently granted, 565 Pa. 138, 771 A.2d 1260 (2001). Furthermore, [i]t improvidently granted, 565 Pa. 138, 771 A.2d 1260 (2001). Furthermore, [i]t
is not essential . . . to produce either the person who made the entries or the is not essential . . . to produce either the person who made the entries or the
custodian of the record at the time the entries were made or that a witness custodian of the record at the time the entries were made or that a witness
qualifying business records even have a personal knowledge of the facts reported qualifying business records even have a personal knowledge of the facts reported
in the business record. Id. in the business record. Id.
Commonwealth v. Campbell, 368 A.2d 1299, 1301-1302 (Pa. Super. Commonwealth v. Campbell, 368 A.2d 1299, 1301-1302 (Pa. Super.
1976) (en banc): in rape trial, hospital record reporting finding of 1976) (en banc): in rape trial, hospital record reporting finding of
semen in victims vagina was assertion of fact rather than medical semen in victims vagina was assertion of fact rather than medical
conclusion, and therefore admissible. conclusion, and therefore admissible.
Commonwealth v. Xiong, 630 A.2d 446 (Pa. Super. 1993): notation in Commonwealth v. Xiong, 630 A.2d 446 (Pa. Super. 1993): notation in
physicians report that victim had no hymen was factual assertion physicians report that victim had no hymen was factual assertion
rather than diagnosis or opinion. rather than diagnosis or opinion.
(a) Authentication (a) Authentication
Records of regularly conducted activity may be authenticated by Records of regularly conducted activity may be authenticated by
certification. This is designed to save the expense and time consumption certification. This is designed to save the expense and time consumption
caused by calling needless foundation witnesses. The notice requirements caused by calling needless foundation witnesses. The notice requirements
provided in Pa.R.E. 902(11) and (12) will give other parties a full opportunity provided in Pa.R.E. 902(11) and (12) will give other parties a full opportunity
to test the adequacy of the foundation. to test the adequacy of the foundation.
(b) Prohibition: Opinions and Diagnoses (b) Prohibition: Opinions and Diagnoses
The records admissible under Pa.R.E. 803(6) do not include opinions The records admissible under Pa.R.E. 803(6) do not include opinions
and diagnoses. Commonwealth v. McCloud, 457 Pa. 310, 313, 322 A.2d 653, and diagnoses. Commonwealth v. McCloud, 457 Pa. 310, 313, 322 A.2d 653,
655 (1974). 655 (1974).
(c) Prohibition: Lack of Trustworthiness (c) Prohibition: Lack of Trustworthiness
Additionally, Pa.R.E. 803(6) allows the court to exclude business records Additionally, Pa.R.E. 803(6) allows the court to exclude business records
that would otherwise qualify for exception to the hearsay rule if the sources that would otherwise qualify for exception to the hearsay rule if the sources
of information or other circumstances indicate lack of trustworthiness. of information or other circumstances indicate lack of trustworthiness.
Commonwealth v. Schoff, 911 A.2d 147, 156 (Pa. Super. 2006). Commonwealth v. Schoff, 911 A.2d 147, 156 (Pa. Super. 2006).
(d) Prohibition: Confrontation Clause (d) Prohibition: Confrontation Clause
If offered against a defendant in a criminal case, an entry in a business If offered against a defendant in a criminal case, an entry in a business
record may be excluded if its admission would violate the defendants record may be excluded if its admission would violate the defendants
constitutional right to confront the witnesses against him or her. See constitutional right to confront the witnesses against him or her. See
Commonwealth v. Carter, 593 Pa. 562, 568-569, 932 A.2d 1261, 1264 (2007); Commonwealth v. Carter, 593 Pa. 562, 568-569, 932 A.2d 1261, 1264 (2007);
Commonwealth v. McCloud, 457 Pa. 310, 315-316, 322 A.2d 653, 656-657 Commonwealth v. McCloud, 457 Pa. 310, 315-316, 322 A.2d 653, 656-657
(1974).32 (1974).32
Additionally, in a criminal case, the trial court may exclude business Additionally, in a criminal case, the trial court may exclude business
records that might otherwise be admissible if the prosecution uses the records records that might otherwise be admissible if the prosecution uses the records
to prove an element of the crime charged, in violation of the confrontation to prove an element of the crime charged, in violation of the confrontation
clause. Commonwealth v. Schoff, 911 A.2d 147, 156 (Pa. Super. 2006). clause. Commonwealth v. Schoff, 911 A.2d 147, 156 (Pa. Super. 2006).
In Commonwealth v. Mitchell, 570 A.2d 532, 534 (Pa. Super. 1990), In Commonwealth v. Mitchell, 570 A.2d 532, 534 (Pa. Super. 1990),
appeal denied, 527 Pa. 599, 589 A.2d 689 (1990), the defendant appeal denied, 527 Pa. 599, 589 A.2d 689 (1990), the defendant
was charged with murder and rape, inter alia. At trial, the medical was charged with murder and rape, inter alia. At trial, the medical
examiner was permitted to read facts from the autopsy report, examiner was permitted to read facts from the autopsy report,
not any opinions or conclusion from the doctor who had prepared not any opinions or conclusion from the doctor who had prepared
the report, and then opined based upon those facts. The Superior the report, and then opined based upon those facts. The Superior
Court found no error or violation of the Confrontation Clause, and Court found no error or violation of the Confrontation Clause, and
stated that Experts may offer testimony based on the reports of stated that Experts may offer testimony based on the reports of
others. others.
(e) The Uniform Business Records as Evidence Act, 42 Pa.Cons.Stat. (e) The Uniform Business Records as Evidence Act, 42 Pa.Cons.Stat.
6108 6108
Note that Pa.R.E. 803(6) differs only slightly from 42 Pa.Cons.Stat. Note that Pa.R.E. 803(6) differs only slightly from 42 Pa.Cons.Stat.
6108, which provides: 6108, which provides:
(a) Short title of section. - This section shall be known (a) Short title of section. - This section shall be known
and may be cited as the Uniform Business Records as and may be cited as the Uniform Business Records as
Evidence Act. Evidence Act.
(b) General Rule. - A record of an act, condition or event (b) General Rule. - A record of an act, condition or event
shall, insofar as relevant, be competent evidence if the shall, insofar as relevant, be competent evidence if the
custodian or other qualified witness testifies to its identity custodian or other qualified witness testifies to its identity
and the mode of its preparation, and if it was made in the and the mode of its preparation, and if it was made in the
regular course of business at or near the time of the act, regular course of business at or near the time of the act,
condition or event, and if, in the opinion of the tribunal, the condition or event, and if, in the opinion of the tribunal, the
sources of information, method and time of preparation sources of information, method and time of preparation
were such as to justify its admission. were such as to justify its admission.
(c) Definition. - As used in this section business (c) Definition. - As used in this section business
includes every kind of business, profession, occupation, includes every kind of business, profession, occupation,
calling, or operation of institutions whether carried on for calling, or operation of institutions whether carried on for
profit or not. profit or not.
This Act permits the admission of business records without the author This Act permits the admission of business records without the author
32 See also Pa.R.E. 803(6), comment. 32 See also Pa.R.E. 803(6), comment.
of the material in the records being present for trial. However, only acts, of the material in the records being present for trial. However, only acts,
conditions or events which are so recorded are admissible, not opinions. conditions or events which are so recorded are admissible, not opinions.
The rationale for excluding medical opinion in hospital The rationale for excluding medical opinion in hospital
records lies in the fact that such evidence is expert testimony records lies in the fact that such evidence is expert testimony
and is not admissible unless the doctor who prepared the and is not admissible unless the doctor who prepared the
report is available for in-court cross-examination regarding report is available for in-court cross-examination regarding
the accuracy, reliability and veracity of his opinion. the accuracy, reliability and veracity of his opinion.
Commonwealth v. Seville, 405 A.2d 1262, 1264 (Pa. Super. 1979) (quoting Commonwealth v. Seville, 405 A.2d 1262, 1264 (Pa. Super. 1979) (quoting
Commonwealth v. McNaughton, 381 A.2d 929, 931 (Pa. Super. 1977)). Commonwealth v. McNaughton, 381 A.2d 929, 931 (Pa. Super. 1977)).
Under this exception, hospital records have been admitted to show Under this exception, hospital records have been admitted to show
the fact of hospitalization, treatment prescribed and symptoms found. the fact of hospitalization, treatment prescribed and symptoms found.
Commonwealth v. Hemingway, 534 A.2d 1104, 1107 (Pa. Super. 1987). Commonwealth v. Hemingway, 534 A.2d 1104, 1107 (Pa. Super. 1987).
As the Superior Court noted in Commonwealth v. Seville, 405 A.2d As the Superior Court noted in Commonwealth v. Seville, 405 A.2d
1262, 1264 (Pa. Super. 1979), the justification for allowing hospital records to 1262, 1264 (Pa. Super. 1979), the justification for allowing hospital records to
be admitted into evidence under the Business Records as Evidence exception be admitted into evidence under the Business Records as Evidence exception
to the hearsay rule is that they are to be considered reliable. to the hearsay rule is that they are to be considered reliable.
Unusual reliability is regarded as furnished by the fact Unusual reliability is regarded as furnished by the fact
that in practice regular entries have a comparatively high that in practice regular entries have a comparatively high
degree of accuracy (as compared to other memoranda) degree of accuracy (as compared to other memoranda)
because such books and records are customarily checked because such books and records are customarily checked
as to correctness by systematic balance striking, because as to correctness by systematic balance striking, because
the very regularity and continuity of the records is the very regularity and continuity of the records is
calculated to train the recordkeeper in habits of precision, calculated to train the recordkeeper in habits of precision,
and because in actual experience the entire business of and because in actual experience the entire business of
the nation and many other activities constantly function the nation and many other activities constantly function
in reliance upon entries of this kind. in reliance upon entries of this kind.
405 A.2d at 1265 (quoting McCormick, Handbook of Law of Evidence, 306 405 A.2d at 1265 (quoting McCormick, Handbook of Law of Evidence, 306
(2d ed. 1972)). (2d ed. 1972)).
In Commonwealth v. Hemingway, 534 A.2d 1104 (Pa. Super. 1987), In Commonwealth v. Hemingway, 534 A.2d 1104 (Pa. Super. 1987),
the Superior Court summarized a three part test, taken from Isaacson v. the Superior Court summarized a three part test, taken from Isaacson v.
Mobile Propane Corporation, 461 A.2d 625 (Pa. Super. 1983), to determine Mobile Propane Corporation, 461 A.2d 625 (Pa. Super. 1983), to determine
if a medical report was admissible under the business records exception to if a medical report was admissible under the business records exception to
the hearsay rule: the hearsay rule:
A medical report is admissible under the business records A medical report is admissible under the business records
exception to the hearsay rule if the report: (1) was made exception to the hearsay rule if the report: (1) was made
contemporaneously with the events it purports to relate, contemporaneously with the events it purports to relate,
(2) at the time the report was prepared, it was impossible (2) at the time the report was prepared, it was impossible
to anticipate reasons which might arise in the future for to anticipate reasons which might arise in the future for
making a false entry in the original and (3) the person making a false entry in the original and (3) the person
responsible for the statements contained in the report responsible for the statements contained in the report
is known. is known.
Hemingway, 534 A.2d at 1107. Hemingway, 534 A.2d at 1107.
In Commonwealth v. Xiong, 630 A.2d 446 (Pa. Super. 1993) (en banc), In Commonwealth v. Xiong, 630 A.2d 446 (Pa. Super. 1993) (en banc),
appeal denied, 537 Pa. 609, 641 A.2d 309 (1994), the defendant, convicted appeal denied, 537 Pa. 609, 641 A.2d 309 (1994), the defendant, convicted
of rape, argued that the hospital records of the child victim included a of rape, argued that the hospital records of the child victim included a
statement that the victim had no hymen which constituted opinion and was statement that the victim had no hymen which constituted opinion and was
thus inadmissible. The Superior Court ruled that the notation was a factual thus inadmissible. The Superior Court ruled that the notation was a factual
assertions rather than a diagnosis or opinion. 630 A.2d at 452. assertions rather than a diagnosis or opinion. 630 A.2d at 452.
[T]he notation clearly was not a conclusory statement [T]he notation clearly was not a conclusory statement
based upon a review of symptoms. It was a physical fact. based upon a review of symptoms. It was a physical fact.
A gynecological exam was performed on the victim and A gynecological exam was performed on the victim and
the doctor found that she did not have a hymen. It was not the doctor found that she did not have a hymen. It was not
an opinion based statement, but rather was based on an an opinion based statement, but rather was based on an
observation made during the exam. observation made during the exam.
Id. On numerous occasions trial courts have had to decide the difference Id. On numerous occasions trial courts have had to decide the difference
between a fact in a record and what is opinion in order to decide whether between a fact in a record and what is opinion in order to decide whether
the hospital records, or which part of the records, are admitted under this the hospital records, or which part of the records, are admitted under this
law: law:
Commonwealth v. Hemingway, 534 A.2d 1104 (Pa. Super. 1987): Commonwealth v. Hemingway, 534 A.2d 1104 (Pa. Super. 1987):
results of rape kit, excluding the finding of spermatozoa, were held to results of rape kit, excluding the finding of spermatozoa, were held to
be wrongly admitted into evidence without appearance and testimony be wrongly admitted into evidence without appearance and testimony
of criminalist who conducted tests. of criminalist who conducted tests.
Commonwealth v. Campbell, 368 A.2d 1299 (Pa. Super. 1976) (en Commonwealth v. Campbell, 368 A.2d 1299 (Pa. Super. 1976) (en
banc): hospital record stating that spermatozoa was found in victims banc): hospital record stating that spermatozoa was found in victims
vagina was treated as fact and was admissible. vagina was treated as fact and was admissible.
Commonwealth v. Green, 380 A.2d 798 (Pa. Super. 1977) (en banc): Commonwealth v. Green, 380 A.2d 798 (Pa. Super. 1977) (en banc):
medical report stating that rape victim exhibited excoriations to medical report stating that rape victim exhibited excoriations to
elbow and forehead did not involve a medical diagnosis or opinion elbow and forehead did not involve a medical diagnosis or opinion
and therefore was admissible under Uniform Business Records as and therefore was admissible under Uniform Business Records as
Evidence Act. Evidence Act.
Commonwealth v. Nieves, 582 A.2d 341, 345 (Pa. Super. 1990), appeal Commonwealth v. Nieves, 582 A.2d 341, 345 (Pa. Super. 1990), appeal
denied, 529 Pa. 633, 600 A.2d 952 (1991): in rape prosecution, the denied, 529 Pa. 633, 600 A.2d 952 (1991): in rape prosecution, the
defendants prison medical records which confirmed that he had defendants prison medical records which confirmed that he had
gonorrhea were admissible under business records exception gonorrhea were admissible under business records exception
standard venereal disease blood test results, even when performed standard venereal disease blood test results, even when performed
by outside testing lab rather than by prison employees, fall under the by outside testing lab rather than by prison employees, fall under the
exception. exception.
6. Admission by Party-Opponent 6. Admission by Party-Opponent
An admission by a party-opponent is admissible when the statement is An admission by a party-opponent is admissible when the statement is
offered against a party and is either: offered against a party and is either:
(A) the partys own statement in either an individual (A) the partys own statement in either an individual
or a representative capacity, or or a representative capacity, or
(B) a statement of which the party has manifested an (B) a statement of which the party has manifested an
adoption or belief in its truth, or adoption or belief in its truth, or
(C) a statement by a person authorized by the party (C) a statement by a person authorized by the party
to make a statement concerning the subject, or to make a statement concerning the subject, or
(D) a statement by the partys agent or servant (D) a statement by the partys agent or servant
concerning a matter within the scope of the agency concerning a matter within the scope of the agency
or employment, made during the existence of the or employment, made during the existence of the
relationship, or relationship, or
(E) a statement by a co-conspirator of a party during (E) a statement by a co-conspirator of a party during
the course and in furtherance of the conspiracy.33 the course and in furtherance of the conspiracy.33
A partys admissions, i.e., a defendants admissions, are not subject to hearsay A partys admissions, i.e., a defendants admissions, are not subject to hearsay
exclusion because: exclusion because:
[I]t is fair in an adversary system that a partys prior statements [I]t is fair in an adversary system that a partys prior statements
be used against him if they are inconsistent with his position be used against him if they are inconsistent with his position
at trial. In addition, a party can hardly complain of his inability at trial. In addition, a party can hardly complain of his inability
to cross-examine himself. A party can put himself on the stand to cross-examine himself. A party can put himself on the stand
and explain or contradict his former statements. and explain or contradict his former statements.
Commonwealth v. Edwards, 588 Pa. 151, 183, 903 A.2d 1139, 1157 (2006), Commonwealth v. Edwards, 588 Pa. 151, 183, 903 A.2d 1139, 1157 (2006),
cert. denied, 549 U.S. 1344, 127 S.Ct. 2030, 167 L.Ed.2d 772 (2007) (quoting cert. denied, 549 U.S. 1344, 127 S.Ct. 2030, 167 L.Ed.2d 772 (2007) (quoting
Commonwealth v. Chmiel, 558 Pa. 478, 504, 738 A.2d 406, 420 (1999), cert. Commonwealth v. Chmiel, 558 Pa. 478, 504, 738 A.2d 406, 420 (1999), cert.
(a) Threatening Statements (a) Threatening Statements
It is a general rule that voluntary extrajudicial statements made by a It is a general rule that voluntary extrajudicial statements made by a
defendant may be admitted even though they contain no admission of guilt. defendant may be admitted even though they contain no admission of guilt.
33 Pa.R.E. 803(25). 33 Pa.R.E. 803(25).
Commonwealth v. Weiss, --- Pa. ---, 81 A.3d 767, 800 (2013). Commonwealth v. Weiss, --- Pa. ---, 81 A.3d 767, 800 (2013).
These extrajudicial statements, which differ from These extrajudicial statements, which differ from
confessions in that they do not acknowledge all essential confessions in that they do not acknowledge all essential
elements of a crime, are generally considered to qualify for elements of a crime, are generally considered to qualify for
introduction into evidence under the admission exception introduction into evidence under the admission exception
to the hearsay rule. to the hearsay rule.
Commonwealth v. Simmons, 541 Pa. 211, 239, 662 A.2d 621, 635 (1995), Commonwealth v. Simmons, 541 Pa. 211, 239, 662 A.2d 621, 635 (1995),
cert. denied, 516 U.S. 1128, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996) (quoting cert. denied, 516 U.S. 1128, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996) (quoting
Commonwealth v. Tervalon, 463 Pa. 581, 590, 345 A.2d 671, 676 (1975)). Commonwealth v. Tervalon, 463 Pa. 581, 590, 345 A.2d 671, 676 (1975)).
D. Exceptions to the Hearsay Rule: Availability of Declarant Necessary D. Exceptions to the Hearsay Rule: Availability of Declarant Necessary
Rule 803.1 of the Pennsylvania Rules of Evidence permits the admission of the Rule 803.1 of the Pennsylvania Rules of Evidence permits the admission of the
hearsay evidence as substantive evidence at trial, not merely as impeachment evidence,34 hearsay evidence as substantive evidence at trial, not merely as impeachment evidence,34
if the declarant appears for trial, testifies and is subject to cross-examination. Rule 803.1 if the declarant appears for trial, testifies and is subject to cross-examination. Rule 803.1
states: states:
Article VIII. Hearsay Article VIII. Hearsay

Rule 803.1. Exceptions to the Rule Against Hearsay-- Rule 803.1. Exceptions to the Rule Against Hearsay--
Testimony of Declarant Necessary Testimony of Declarant Necessary
The following statements are not excluded by the rule against The following statements are not excluded by the rule against
hearsay if the declarant testifies and is subject to cross- hearsay if the declarant testifies and is subject to cross-
examination about the prior statement: examination about the prior statement:
(1) Prior Inconsistent Statement of Declarant-Witness. A (1) Prior Inconsistent Statement of Declarant-Witness. A
prior statement by a declarant-witness that is inconsistent with prior statement by a declarant-witness that is inconsistent with
the declarant-witnesss testimony and: the declarant-witnesss testimony and:
(A) was given under oath subject to the penalty of perjury (A) was given under oath subject to the penalty of perjury
at a trial, hearing, or other proceeding, or in a deposition; at a trial, hearing, or other proceeding, or in a deposition;
(B) is a writing signed and adopted by the declarant; or (B) is a writing signed and adopted by the declarant; or
(C) is a verbatim contemporaneous electronic, audiotaped, (C) is a verbatim contemporaneous electronic, audiotaped,
or videotaped recording of an oral statement. or videotaped recording of an oral statement.
(2) Prior Statement of Identification by Declarant-Witness. (2) Prior Statement of Identification by Declarant-Witness.
A prior statement by a declarant-witness identifying a person A prior statement by a declarant-witness identifying a person
or thing, made after perceiving the person or thing, provided or thing, made after perceiving the person or thing, provided
that the declarant-witness testifies to the making of the prior that the declarant-witness testifies to the making of the prior
34 A prior inconsistent statement used for impeachment purposes only, which does not qualify for admission under Pa.R.E. 803.1, may be 34 A prior inconsistent statement used for impeachment purposes only, which does not qualify for admission under Pa.R.E. 803.1, may be
used to impeach the credibility of a witness under Pa.R.E. 613. used to impeach the credibility of a witness under Pa.R.E. 613.
(3) Recorded Recollection of Declarant-Witness. A (3) Recorded Recollection of Declarant-Witness. A

memorandum or record made or adopted by a declarant- memorandum or record made or adopted by a declarant-
witness that: witness that:
(A) is on a matter the declarant-witness once knew about (A) is on a matter the declarant-witness once knew about
but now cannot recall well enough to testify fully and but now cannot recall well enough to testify fully and
accurately; accurately;
(B) was made or adopted by the declarant-witness when (B) was made or adopted by the declarant-witness when
the matter was fresh in his or her memory; and the matter was fresh in his or her memory; and
(C) the declarant-witness testifies accurately reflects his (C) the declarant-witness testifies accurately reflects his
or her knowledge at the time when made. or her knowledge at the time when made.
If admitted, the memorandum or record may be read into If admitted, the memorandum or record may be read into
evidence and received as an exhibit, but may be shown to the evidence and received as an exhibit, but may be shown to the
jury only in exceptional circumstances or when offered by an jury only in exceptional circumstances or when offered by an
adverse party. adverse party.
1. Prior Inconsistent Statement 1. Prior Inconsistent Statement
The law regarding the admission of prior inconsistent statements of The law regarding the admission of prior inconsistent statements of
witness to be used as substantive evidence, as an exception to the hearsay rule, witness to be used as substantive evidence, as an exception to the hearsay rule,
developed over a number of Supreme Court cases. In Commonwealth v. Brady, developed over a number of Supreme Court cases. In Commonwealth v. Brady,
510 Pa. 123, 507 A.2d 66 (1986), the Pennsylvania Supreme Court decided 510 Pa. 123, 507 A.2d 66 (1986), the Pennsylvania Supreme Court decided
that prior inconsistent statements of a non-party witness could be used as that prior inconsistent statements of a non-party witness could be used as
substantive evidence where the declarant is a witness at trial and available for substantive evidence where the declarant is a witness at trial and available for
cross-examination. cross-examination.
The next step was in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 The next step was in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7
(1992), wherein the Supreme Court stated that the prior inconsistent statement (1992), wherein the Supreme Court stated that the prior inconsistent statement
could be considered highly reliable to warrant admission as substantive evidence could be considered highly reliable to warrant admission as substantive evidence
when it was given under oath at a formal legal proceeding, or the statement was when it was given under oath at a formal legal proceeding, or the statement was
reduced to a writing signed and adopted by the declarant, or the statement was reduced to a writing signed and adopted by the declarant, or the statement was
recorded verbatim contemporaneously with the making of the statement. See recorded verbatim contemporaneously with the making of the statement. See
also Commonwealth v. Brown, 617 Pa. 107, 131, 52 A.3d 1139, 1154 (2012). also Commonwealth v. Brown, 617 Pa. 107, 131, 52 A.3d 1139, 1154 (2012).
In Commonwealth v. Wilson, 550 Pa. 518, 707 A.2d 1114 (1998), the In Commonwealth v. Wilson, 550 Pa. 518, 707 A.2d 1114 (1998), the
Pennsylvania Supreme Court ruled that a police officers notes, taken during an Pennsylvania Supreme Court ruled that a police officers notes, taken during an
interview or interrogation of a witness, do not meet the standard of an electronic, interview or interrogation of a witness, do not meet the standard of an electronic,
audiotaped or videotaped recording to warrant admission under the exception. audiotaped or videotaped recording to warrant admission under the exception.
550 Pa. at 527, 707 A.2d at 1118. 550 Pa. at 527, 707 A.2d at 1118.
In Commonwealth v. Halsted, 542 Pa. 318, 666 A.2d 655 (1995), the In Commonwealth v. Halsted, 542 Pa. 318, 666 A.2d 655 (1995), the
defendant was convicted of involuntary deviate sexual intercourse and indecent defendant was convicted of involuntary deviate sexual intercourse and indecent
assault. The defendants grandson told a Pennsylvania State Trooper during an assault. The defendants grandson told a Pennsylvania State Trooper during an
interview that he was told by the defendant to stand guard during the sexual interview that he was told by the defendant to stand guard during the sexual
assault so that he would not be discovered. The grandson stated also that the assault so that he would not be discovered. The grandson stated also that the
defendant had performed oral sex on him on two different occasions when he defendant had performed oral sex on him on two different occasions when he
was younger. The trooper made notes during the interviews and later prepared was younger. The trooper made notes during the interviews and later prepared
a typewritten police report from his interview notes. At trial the defendants a typewritten police report from his interview notes. At trial the defendants
grandson also testified; however, he claimed that he had not seen the defendant grandson also testified; however, he claimed that he had not seen the defendant
engage in oral sex with the other child, that he had not acted as a lookout, that engage in oral sex with the other child, that he had not acted as a lookout, that
he had not been sexually abused and could not recall telling the trooper that he had not been sexually abused and could not recall telling the trooper that
such abuse had occurred. The Commonwealth was unsuccessful in its attempt such abuse had occurred. The Commonwealth was unsuccessful in its attempt
to refresh the childs recollection by confronting him with the statements made to refresh the childs recollection by confronting him with the statements made
to the trooper. The trooper was then permitted to read into the record the text to the trooper. The trooper was then permitted to read into the record the text
of the grandsons statement from his typewritten police report as substantive of the grandsons statement from his typewritten police report as substantive
evidence of the offense. The Pennsylvania Supreme Court ruled that the report evidence of the offense. The Pennsylvania Supreme Court ruled that the report
had not been made contemporaneously with the interview with the child, and had not been made contemporaneously with the interview with the child, and
was therefore inadmissible under the standards set up in Commonwealth v. was therefore inadmissible under the standards set up in Commonwealth v.
Lively, 542 Pa. at 323, 666 A.2d at 658. In Commonwealth v. Wilson, 550 Pa. Lively, 542 Pa. at 323, 666 A.2d at 658. In Commonwealth v. Wilson, 550 Pa.
518, 707 A.2d 1114 (1998), the Supreme Court went back to the facts of Halsted, 518, 707 A.2d 1114 (1998), the Supreme Court went back to the facts of Halsted,
and stated that even if the Commonwealth had used the Troopers original notes and stated that even if the Commonwealth had used the Troopers original notes
from the interview, they would have been inadmissible because the recording from the interview, they would have been inadmissible because the recording
of the statement must be an electronic, audiotaped or videotaped recording in of the statement must be an electronic, audiotaped or videotaped recording in
order to be considered as substantive evidence. 550 Pa. at 527, 707 A.2d at 118. order to be considered as substantive evidence. 550 Pa. at 527, 707 A.2d at 118.
2. Pretrial Identification By A Witness 2. Pretrial Identification By A Witness
When witnesses are in court and subject to cross-examination, another When witnesses are in court and subject to cross-examination, another
witness may testify concerning pre-trial identification evidence by the witnesses. witness may testify concerning pre-trial identification evidence by the witnesses.
Commonwealth v. Ly, 528 Pa. 523, 532, 599 A.2d 613, 617 (1991). Witnesses Commonwealth v. Ly, 528 Pa. 523, 532, 599 A.2d 613, 617 (1991). Witnesses
are permitted to use, typically, photographs as means of pretrial identifications, are permitted to use, typically, photographs as means of pretrial identifications,
however other means are admissible as well. however other means are admissible as well.
A composite sketch constitutes an identification. In Commonwealth v. A composite sketch constitutes an identification. In Commonwealth v.
Beale, 665 A.2d 473 (Pa. Super. 1995), appeal denied, 544 Pa. 652, 676 A.2d 1194 Beale, 665 A.2d 473 (Pa. Super. 1995), appeal denied, 544 Pa. 652, 676 A.2d 1194
(1996), a rape case, the Commonwealth was permitted to admit into the record (1996), a rape case, the Commonwealth was permitted to admit into the record
in its case in chief a composite sketch of the assailant, created by the complainant in its case in chief a composite sketch of the assailant, created by the complainant
two days following the rape, of the assailant. The Superior Court affirmed, stating: two days following the rape, of the assailant. The Superior Court affirmed, stating:
Further, when making an identification, it is sometimes necessary to Further, when making an identification, it is sometimes necessary to
employ artificial means in order to communicate the image to others. employ artificial means in order to communicate the image to others.
The witness certainty in making the identification as well as the degree The witness certainty in making the identification as well as the degree
of similarity between the object identified and the defendant does not of similarity between the object identified and the defendant does not
affect the admissibility of the identification but instead goes to the affect the admissibility of the identification but instead goes to the
weight and credibility of the witness testimony. weight and credibility of the witness testimony.
665 A.2d at 477 (citations omitted).35 665 A.2d at 477 (citations omitted).35
3. Recorded Recollection 3. Recorded Recollection
This exception only applies where the witness lacks a present recollection This exception only applies where the witness lacks a present recollection
of the event. See Croyle v. Smith, 918 A.2d 142, 148 (Pa. Super. 2007) (citing of the event. See Croyle v. Smith, 918 A.2d 142, 148 (Pa. Super. 2007) (citing
Commonwealth v. Young, 561 Pa. 34, 56, 748 A.2d 166, 177 (1999)). See Pa.R.E. Commonwealth v. Young, 561 Pa. 34, 56, 748 A.2d 166, 177 (1999)). See Pa.R.E.
803.1(3). 803.1(3).
Prior to the adoption of Pa.R.E. 803.1, caselaw provided four elements for Prior to the adoption of Pa.R.E. 803.1, caselaw provided four elements for
a hearsay statement to be admitted as a past recollection recorded: a hearsay statement to be admitted as a past recollection recorded:
(1) the witness must have had firsthand knowledge of the event; (1) the witness must have had firsthand knowledge of the event;
(2) the written statement must be an original memorandum (2) the written statement must be an original memorandum
made at or near the time of the event and while the witness made at or near the time of the event and while the witness
had a clear and accurate memory of it; (3) the witness must had a clear and accurate memory of it; (3) the witness must
lack a present recollection of the event; and (4) the witness lack a present recollection of the event; and (4) the witness
must vouch for the accuracy of the written memorandum. must vouch for the accuracy of the written memorandum.
Commonwealth v. Young, 561 Pa. 34, 56, 748 A.2d 166, 177 (1999). Commonwealth v. Young, 561 Pa. 34, 56, 748 A.2d 166, 177 (1999).
E. Exceptions to the Hearsay Rule: Declarant Unavailable E. Exceptions to the Hearsay Rule: Declarant Unavailable
Pennsylvania Rule of Evidence 804 provides for exceptions to the hearsay rule Pennsylvania Rule of Evidence 804 provides for exceptions to the hearsay rule
under circumstances in which the declarant is unavailable at trial. The rule, which was under circumstances in which the declarant is unavailable at trial. The rule, which was
rewritten in 2013, states: rewritten in 2013, states:
Pa.R.E. 804. Exceptions to the Rule Against Hearsay-- Pa.R.E. 804. Exceptions to the Rule Against Hearsay--
When the Declarant is Unavailable as a Witness When the Declarant is Unavailable as a Witness
(a) Criteria for Being Unavailable. A declarant is considered (a) Criteria for Being Unavailable. A declarant is considered
to be unavailable as a witness if the declarant: to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter (1) is exempted from testifying about the subject matter
of the declarants statement because the court rules that of the declarants statement because the court rules that
a privilege applies; a privilege applies;
(2) refuses to testify about the subject matter despite a (2) refuses to testify about the subject matter despite a
court order to do so; court order to do so;
(3) testifies to not remembering the subject matter; (3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing (4) cannot be present or testify at the trial or hearing
because of death or a then-existing infirmity, physical because of death or a then-existing infirmity, physical
35 See 23 A.L.R. 5th 672 (1994)(Admissibility in evidence of composite picture or sketch produced by police to identify offender). 35 See 23 A.L.R. 5th 672 (1994)(Admissibility in evidence of composite picture or sketch produced by police to identify offender).
illness, or mental illness; or illness, or mental illness; or
(5) is absent from the trial or hearing and the statements (5) is absent from the trial or hearing and the statements
proponent has not been able, by process or other proponent has not been able, by process or other
reasonable means, to procure: reasonable means, to procure:
(A) the declarants attendance, in the case of a (A) the declarants attendance, in the case of a
hearsay exception under Rule 804(b)(1) or (6); or hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarants attendance or testimony, in the (B) the declarants attendance or testimony, in the
case of a hearsay exception under Rule 804(b)(2), case of a hearsay exception under Rule 804(b)(2),
(3), or (4). (3), or (4).
But this subdivision (a) does not apply if the statements But this subdivision (a) does not apply if the statements
proponent procured or wrongfully caused the declarants proponent procured or wrongfully caused the declarants
unavailability as a witness in order to prevent the declarant unavailability as a witness in order to prevent the declarant
from attending or testifying. from attending or testifying.
(b) The Exceptions. The following are not excluded by the rule (b) The Exceptions. The following are not excluded by the rule
against hearsay if the declarant is unavailable as a witness: against hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that: (1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or (A) was given as a witness at a trial, hearing, or
lawful deposition, whether given during the current lawful deposition, whether given during the current
proceeding or a different one; and proceeding or a different one; and
(B) is now offered against a party who had--or, in (B) is now offered against a party who had--or, in
a civil case, whose predecessor in interest had-- a civil case, whose predecessor in interest had--
an opportunity and similar motive to develop it by an opportunity and similar motive to develop it by
direct, cross-, or redirect examination. direct, cross-, or redirect examination.
(2) Statement Under Belief of Imminent Death. A statement (2) Statement Under Belief of Imminent Death. A statement
that the declarant, while believing the declarants death to that the declarant, while believing the declarants death to
be imminent, made about its cause or circumstances. be imminent, made about its cause or circumstances.
(3) Statement Against Interest. A statement that: (3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarants position (A) a reasonable person in the declarants position
would have made only if the person believed it to be would have made only if the person believed it to be
true because, when made, it was so contrary to the true because, when made, it was so contrary to the
declarants proprietary or pecuniary interest or had declarants proprietary or pecuniary interest or had
so great a tendency to invalidate the declarants so great a tendency to invalidate the declarants
claim against someone else or to expose the claim against someone else or to expose the
declarant to civil or criminal liability; and declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances (B) is supported by corroborating circumstances

that clearly indicate its trustworthiness, if it is offered that clearly indicate its trustworthiness, if it is offered
in a criminal case as one that tends to expose the in a criminal case as one that tends to expose the
declarant to criminal liability. declarant to criminal liability.
(4) Statement of Personal or Family History. A statement made (4) Statement of Personal or Family History. A statement made
before the controversy arose about: before the controversy arose about:
(A) the declarants own birth, adoption, legitimacy, (A) the declarants own birth, adoption, legitimacy,
ancestry, marriage, divorce, relationship by blood, ancestry, marriage, divorce, relationship by blood,
adoption or marriage, or similar facts of personal or adoption or marriage, or similar facts of personal or
family history, even though the declarant had no way of family history, even though the declarant had no way of
acquiring personal knowledge about that fact; or acquiring personal knowledge about that fact; or
(B) another person concerning any of these facts, as (B) another person concerning any of these facts, as
well as death, if the declarant was related to the person well as death, if the declarant was related to the person
by blood, adoption, or marriage or was so intimately by blood, adoption, or marriage or was so intimately
associated with the persons family that the declarants associated with the persons family that the declarants
information is likely to be accurate. information is likely to be accurate.
(5) Other exceptions (Not Adopted) (5) Other exceptions (Not Adopted)
(6) Statement Offered Against a Party That Wrongfully Caused (6) Statement Offered Against a Party That Wrongfully Caused
the Declarants Unavailability. A statement offered against the Declarants Unavailability. A statement offered against
a party that wrongfully caused--or acquiesced in wrongfully a party that wrongfully caused--or acquiesced in wrongfully
causing--the declarants unavailability as a witness, and did so causing--the declarants unavailability as a witness, and did so
intending that result.36 intending that result.36
A declarant is not unavailable as a witness if the exemption, refusal, claim of lack of A declarant is not unavailable as a witness if the exemption, refusal, claim of lack of
memory, inability due to death or illness, or absence is due to the procurement or memory, inability due to death or illness, or absence is due to the procurement or
wrongdoing of the proponent of a statement for the purpose of preventing the witness wrongdoing of the proponent of a statement for the purpose of preventing the witness
from attending or testifying.37 from attending or testifying.37
The following statements, as hereinafter defined, are not excluded by the hearsay rule if The following statements, as hereinafter defined, are not excluded by the hearsay rule if
the declarant is unavailable as a witness: the declarant is unavailable as a witness:
1. Former Testimony, Pa.R.E., Rule 804(b)(1) 1. Former Testimony, Pa.R.E., Rule 804(b)(1)
Preliminary Hearing: In the context of a criminal action, a preliminary Preliminary Hearing: In the context of a criminal action, a preliminary
hearing of the same case constitutes former testimony under Rule 804(b)(1) hearing of the same case constitutes former testimony under Rule 804(b)(1)
(A) when the declarant is specifically unavailable, due to death or otherwise, (A) when the declarant is specifically unavailable, due to death or otherwise,
and there is a full opportunity to cross-examine that witness at the hearing. and there is a full opportunity to cross-examine that witness at the hearing.
Commonwealth v. Stays, 70 A.3d 1256, 2163 (Pa. Super. 2013); Commonwealth Commonwealth v. Stays, 70 A.3d 1256, 2163 (Pa. Super. 2013); Commonwealth
36 Pa.R.E. 804. 36 Pa.R.E. 804.
37 Pa.R.E. 804(a). 37 Pa.R.E. 804(a).
v. McCrae, 574 Pa. 594, 608, 832 A.2d 1026, 1034-1035 (2003), cert. denied, 543 v. McCrae, 574 Pa. 594, 608, 832 A.2d 1026, 1034-1035 (2003), cert. denied, 543
U.S. 822, 125 S.Ct. 31, 160 L.Ed.2d 32 (2004). See also Commonwealth v. Stays, U.S. 822, 125 S.Ct. 31, 160 L.Ed.2d 32 (2004). See also Commonwealth v. Stays,
70 A.3d 1256, 1263-1264 (Pa.Super. 2013). 70 A.3d 1256, 1263-1264 (Pa.Super. 2013).
However, if the opposing party, typically the defendant, were denied However, if the opposing party, typically the defendant, were denied
access to vital impeachment evidence at the time of the preliminary access to vital impeachment evidence at the time of the preliminary
hearing, then there is a denial of a full and fair opportunity to cross- hearing, then there is a denial of a full and fair opportunity to cross-
examine the unavailable witness and the prior recorded testimony examine the unavailable witness and the prior recorded testimony
is not admissible at a later trial. Commonwealth v. Johnson, 758 is not admissible at a later trial. Commonwealth v. Johnson, 758
A.2d 166, 169 (Pa. Super. 2000), appeal denied, 566 Pa. 637, 781 A.2d 166, 169 (Pa. Super. 2000), appeal denied, 566 Pa. 637, 781
A.2d 140 (2001). A.2d 140 (2001).
Earlier Trial: In Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618 Earlier Trial: In Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618
(2010), cert. denied, 131 S.Ct. 659, 178 L.Ed.2d 492 (2010), a witness was deemed (2010), cert. denied, 131 S.Ct. 659, 178 L.Ed.2d 492 (2010), a witness was deemed
unavailable because he exercise his Fifth Amendment privilege and refused to unavailable because he exercise his Fifth Amendment privilege and refused to
testify at trial. The witnesss testimony from the first trial, including both direct testify at trial. The witnesss testimony from the first trial, including both direct
and cross-examination, was read to the jury. and cross-examination, was read to the jury.
(a) Full and Fair Opportunity to Cross-Examine (a) Full and Fair Opportunity to Cross-Examine
In criminal cases the Supreme Court has held that former testimony In criminal cases the Supreme Court has held that former testimony
is admissible against the defendant only if the defendant had a full and fair is admissible against the defendant only if the defendant had a full and fair
opportunity to examine the witness. See Commonwealth v. Laird, 605 Pa. opportunity to examine the witness. See Commonwealth v. Laird, 605 Pa.
137, 158-159, 988 A.2d 618, 630 (2010), cert. denied, 131 S.Ct. 659, 178 137, 158-159, 988 A.2d 618, 630 (2010), cert. denied, 131 S.Ct. 659, 178
L.Ed.2d 492 (2010); Pa.R.E. 804(b)(1) Comment. L.Ed.2d 492 (2010); Pa.R.E. 804(b)(1) Comment.
The former testimony exception to the hearsay rule is predicated on The former testimony exception to the hearsay rule is predicated on
the indicia of reliability normally afforded by adequate cross-examination. the indicia of reliability normally afforded by adequate cross-examination.
Commonwealth v. Bazemore, 531 Pa. 582, 587, 614 A.2d 684, 687 (1992) Commonwealth v. Bazemore, 531 Pa. 582, 587, 614 A.2d 684, 687 (1992)
(quoting Commonwealth v. Mangini, 493 Pa. 203, 213, 425 A.2d 734, 739 (quoting Commonwealth v. Mangini, 493 Pa. 203, 213, 425 A.2d 734, 739
(1981). (1981).
2. Statement Under Belief of Impending Death 2. Statement Under Belief of Impending Death
A statement made under belief of impending death is a statement made by A statement made under belief of impending death is a statement made by
a declarant while believing that the declarants death was imminent, concerning a declarant while believing that the declarants death was imminent, concerning
the cause or circumstances of what the declarant believed to be impending death. the cause or circumstances of what the declarant believed to be impending death.
Statements that qualify under this exception are admissible in all cases, which is Statements that qualify under this exception are admissible in all cases, which is
a departure from prior Pennsylvania law. a departure from prior Pennsylvania law.
A statement of the declarants own observations is admissible as a dying A statement of the declarants own observations is admissible as a dying
declaration if, at the time it was made, the declarant believed he would die, that declaration if, at the time it was made, the declarant believed he would die, that
his death was imminent, and death actually ensued. Commonwealth v. Farrior, his death was imminent, and death actually ensued. Commonwealth v. Farrior,
3. Statement Against Interest 3. Statement Against Interest
In a criminal case, a statement tending to expose the declarant to criminal In a criminal case, a statement tending to expose the declarant to criminal
liability is not admissible unless the surrounding circumstances clearly indicate liability is not admissible unless the surrounding circumstances clearly indicate
the trustworthiness of the statement: the trustworthiness of the statement:
A statement against penal interest is often considered A statement against penal interest is often considered
trustworthy if it subjects the declarant to criminal liability trustworthy if it subjects the declarant to criminal liability
and a reasonable person would not make the claim unless and a reasonable person would not make the claim unless
it was true. Before crediting as reliable a statement against it was true. Before crediting as reliable a statement against
penal interest, the court must consider the declarants motive penal interest, the court must consider the declarants motive
for making the statement and whether the surrounding for making the statement and whether the surrounding
circumstances indicate the statement is trustworthy. For circumstances indicate the statement is trustworthy. For
example, a defendants relative or close friends confession example, a defendants relative or close friends confession
should be closely scrutinized for motive to fabricate the should be closely scrutinized for motive to fabricate the
confession. confession.
Commonwealth v. Padillas, 997 A.2d 356, 366 (Pa. Super. 2010), appeal Commonwealth v. Padillas, 997 A.2d 356, 366 (Pa. Super. 2010), appeal
denied, 609 Pa. 687, 14 A.3d 826 (2010). What matters is that the facts within denied, 609 Pa. 687, 14 A.3d 826 (2010). What matters is that the facts within
the statements tended to subject the declarant to criminal liability and that a the statements tended to subject the declarant to criminal liability and that a
reasonable person in the declarants position would not have made those reasonable person in the declarants position would not have made those
statements unless believing them to be true. Commonwealth v. Cascardo, 981 statements unless believing them to be true. Commonwealth v. Cascardo, 981
A.2d 245, 257 (Pa.Super. 2009), appeal denied, 608 Pa. 652, 12 A.3d 750 (2010). A.2d 245, 257 (Pa.Super. 2009), appeal denied, 608 Pa. 652, 12 A.3d 750 (2010).
Examples of the scrutiny given to statements against interest were Examples of the scrutiny given to statements against interest were
provided in Commonwealth v. Padillas: provided in Commonwealth v. Padillas:
See [Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 See [Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216
(1981)] (affirming trial courts rejection of confession of (1981)] (affirming trial courts rejection of confession of
defendants girlfriend as unreliable, where girlfriend made defendants girlfriend as unreliable, where girlfriend made
confession during jury deliberations later repudiated her confession during jury deliberations later repudiated her
confession). See also State v. Cureaux, 736 So.2d 318, 322-323 confession). See also State v. Cureaux, 736 So.2d 318, 322-323
(La.App.4th Cir 1999) (stating nephews motive for confessing (La.App.4th Cir 1999) (stating nephews motive for confessing
to uncles crimes was suspect, due to familial relationship); to uncles crimes was suspect, due to familial relationship);
[Commonwealth v. Weichell, 446 Mass. 785, 847 N.E.2d [Commonwealth v. Weichell, 446 Mass. 785, 847 N.E.2d
1080 (Mass. 2006)] (noting third partys close relationship 1080 (Mass. 2006)] (noting third partys close relationship
to defendant demonstrated obvious motive to fabricate to defendant demonstrated obvious motive to fabricate
confession); State v. Haner, 182 Vt. 7, 928 A.2d 518, 523, confession); State v. Haner, 182 Vt. 7, 928 A.2d 518, 523,
524-25 (2007) (stating: [T]he familial relationship between 524-25 (2007) (stating: [T]he familial relationship between
defendant and his brother calls into question the veracity of defendant and his brother calls into question the veracity of
any exculpatory statement by defendants brother); King v. any exculpatory statement by defendants brother); King v.
State, 780 P.2d 943, 950 (Wyo. 1989) (observing motive of State, 780 P.2d 943, 950 (Wyo. 1989) (observing motive of
the declarant to falsify for the benefit of the accused should the declarant to falsify for the benefit of the accused should
also be considered when analyzing admissibility of statement also be considered when analyzing admissibility of statement
against penal interest). against penal interest).
997 A.2d at 366. 997 A.2d at 366.
4. Exception Because of Wrongdoing 4. Exception Because of Wrongdoing
Hearsay is admissible when the defendant wrongfully causes the Hearsay is admissible when the defendant wrongfully causes the
declarants unavailability. The language of the Rule requires that the party declarants unavailability. The language of the Rule requires that the party
against whom the statement is offered acted wrongfully (or acquiesced in the against whom the statement is offered acted wrongfully (or acquiesced in the
wrongful conduct) and that the wrongful conduct was intended to and did in wrongful conduct) and that the wrongful conduct was intended to and did in
fact procure the unavailability of the declarant as a witness. Commonwealth v. fact procure the unavailability of the declarant as a witness. Commonwealth v.
Santiago, 822 A.2d 716, 731 (Pa. Super. 2003), appeal denied, 577 Pa. 679, 843 Santiago, 822 A.2d 716, 731 (Pa. Super. 2003), appeal denied, 577 Pa. 679, 843
A.2d 1237 (2004), cert. denied, 542 U.S. 942, 124 S.Ct. 2916, 159 L.Ed.2d 820 A.2d 1237 (2004), cert. denied, 542 U.S. 942, 124 S.Ct. 2916, 159 L.Ed.2d 820
(2004). Under this exception, the hearsay is considered as substantive evidence. (2004). Under this exception, the hearsay is considered as substantive evidence.
Until it was rewritten in 2013, this section was referenced as the forfeiture by Until it was rewritten in 2013, this section was referenced as the forfeiture by
wrongdoing exception. wrongdoing exception.
The absent witnesss statement is admissible as evidence pertaining to the The absent witnesss statement is admissible as evidence pertaining to the
events about which the witness would have testified had he not been prevented events about which the witness would have testified had he not been prevented
from doing so by the defendant. Commonwealth v. King, 959 A.2d 405, 414 (Pa. from doing so by the defendant. Commonwealth v. King, 959 A.2d 405, 414 (Pa.
Super. 2008). The absent witnesss statement is also admissible in a trial for the Super. 2008). The absent witnesss statement is also admissible in a trial for the
murder, or other crime committed against the missing witness. Id. murder, or other crime committed against the missing witness. Id.
Even before this exception was adopted, the Pennsylvania Supreme Even before this exception was adopted, the Pennsylvania Supreme
Court, in Commonwealth v. Paddy, 569 Pa. 47, 73 n. 10, 800 A.2d 296, 310 n. Court, in Commonwealth v. Paddy, 569 Pa. 47, 73 n. 10, 800 A.2d 296, 310 n.
10 (2002) (quoting the trial court), recognized the rationale behind the Rule: 10 (2002) (quoting the trial court), recognized the rationale behind the Rule:
[t]ime and again, appellate courts have upheld the use of hearsay evidence [t]ime and again, appellate courts have upheld the use of hearsay evidence
against a defendant after he has menacingly procured the absence of the witness against a defendant after he has menacingly procured the absence of the witness
against him, and then gallingly argued that the evidence previously provided by against him, and then gallingly argued that the evidence previously provided by
this witness must be withheld from the finder of fact. this witness must be withheld from the finder of fact.
F. Attacking and Supporting the Declarants Credibility F. Attacking and Supporting the Declarants Credibility
Rule 806 of the Pennsylvania Rules of Evidence states: Rule 806 of the Pennsylvania Rules of Evidence states:
When a hearsay statement has been admitted in evidence, the When a hearsay statement has been admitted in evidence, the
declarants credibility may be attacked, and then supported, by declarants credibility may be attacked, and then supported, by
any evidence that would be admissible for those purposes if any evidence that would be admissible for those purposes if
the declarant had testified as a witness. The court may admit the declarant had testified as a witness. The court may admit
evidence of the declarants inconsistent statement or conduct, evidence of the declarants inconsistent statement or conduct,
regardless of when it occurred or whether the declarant had regardless of when it occurred or whether the declarant had
an opportunity to explain or deny it. If the party against whom an opportunity to explain or deny it. If the party against whom
the statement was admitted calls the declarant as a witness, the statement was admitted calls the declarant as a witness,
the party may examine the declarant on the statement as if on the party may examine the declarant on the statement as if on
cross-examination.38 cross-examination.38
38 Pa.R.E. 806. 38 Pa.R.E. 806.
This Rule permits evidence for impeachment of the out-of-court declarant, not as This Rule permits evidence for impeachment of the out-of-court declarant, not as
substantive evidence, when hearsay is admitted under one of the exceptions. substantive evidence, when hearsay is admitted under one of the exceptions.
An example of this type of evidence is Commonwealth v. Davis, 526 A.2d 1205 An example of this type of evidence is Commonwealth v. Davis, 526 A.2d 1205
(1987), appeal denied, 518 Pa. 624, 541 A.2d 1135 (1988). In Davis, the prosecution (1987), appeal denied, 518 Pa. 624, 541 A.2d 1135 (1988). In Davis, the prosecution
was permitted to impeach a prior recorded statement of a defense witness by utilizing a was permitted to impeach a prior recorded statement of a defense witness by utilizing a
later, out-of-court statement the same witness gave to a police officer. Id. at 1215-1216. later, out-of-court statement the same witness gave to a police officer. Id. at 1215-1216.
Commonwealth v. Smith, 552 A.2d 1053, 1057 (Pa. Super. 1988), appeal Commonwealth v. Smith, 552 A.2d 1053, 1057 (Pa. Super. 1988), appeal
denied, 525 Pa. 581, 575 A.2d 112 (1990): Prior recorded testimony, like denied, 525 Pa. 581, 575 A.2d 112 (1990): Prior recorded testimony, like
any other testimony, is subject to impeachment through introduction of prior any other testimony, is subject to impeachment through introduction of prior
inconsistencies. inconsistencies.
7.11 SPECIAL HEARSAY EXCEPTION: TENDER YEARS EXCEPTION 7.11 SPECIAL HEARSAY EXCEPTION: TENDER YEARS EXCEPTION
Under the Tender Years Hearsay Act, 42 Pa.Cons.Stat.Ann. 5985.1, Under the Tender Years Hearsay Act, 42 Pa.Cons.Stat.Ann. 5985.1,
certain out-of-court statements made by a child victim or certain out-of-court statements made by a child victim or
witness may be admissible at trial if the child either testifies witness may be admissible at trial if the child either testifies
at the proceeding or is unavailable as a witness, and the court at the proceeding or is unavailable as a witness, and the court
finds that the evidence is relevant and that the time, content finds that the evidence is relevant and that the time, content
and circumstances of the statement provide sufficient indicia of and circumstances of the statement provide sufficient indicia of
reliability. reliability.
Commonwealth v. Allshouse, 614 Pa. 229, 238, 36 A.3d 163, 168 (2012), cert. denied, Commonwealth v. Allshouse, 614 Pa. 229, 238, 36 A.3d 163, 168 (2012), cert. denied,
--- U.S. ---, 133 S.Ct. 2336, 185 L.Ed.2d 1063 (2013). This tender years exception to --- U.S. ---, 133 S.Ct. 2336, 185 L.Ed.2d 1063 (2013). This tender years exception to
the rule against hearsay permits a hearsay statement of a child abuse victim, or a child the rule against hearsay permits a hearsay statement of a child abuse victim, or a child
witness, twelve years old or younger, to be admissible if the evidence is relevant and if the witness, twelve years old or younger, to be admissible if the evidence is relevant and if the
time, content and circumstances of the statement provide sufficient indicia of reliability. time, content and circumstances of the statement provide sufficient indicia of reliability.
Commonwealth v. Hunzer, 868 A.2d 498, 510 (Pa. Super. 2005), appeal denied, 584 Pa. Commonwealth v. Hunzer, 868 A.2d 498, 510 (Pa. Super. 2005), appeal denied, 584 Pa.
673, 880 A.2d 1237 (2005). The tender years exception allows for the admission of a 673, 880 A.2d 1237 (2005). The tender years exception allows for the admission of a
childs out-of-court statement due to the fragile nature of the victims of childhood sexual childs out-of-court statement due to the fragile nature of the victims of childhood sexual
abuse. Commonwealth v. Barnett, 50 A.3d 176, 182 (Pa. Super. 2012), appeal denied, abuse. Commonwealth v. Barnett, 50 A.3d 176, 182 (Pa. Super. 2012), appeal denied,
--- Pa. ---, 63 A.3d 771 (2013). --- Pa. ---, 63 A.3d 771 (2013).
Under 42 Pa.Cons.Stat.Ann. 5985.1, certain out of court statements of child Under 42 Pa.Cons.Stat.Ann. 5985.1, certain out of court statements of child
victims and child witnesses are admissible under the following standards: victims and child witnesses are admissible under the following standards:
5985.1. Admissibility of certain statements 5985.1. Admissibility of certain statements
(a) General rule.--An out-of-court statement made by a child (a) General rule.--An out-of-court statement made by a child
victim or witness, who at the time the statement was made victim or witness, who at the time the statement was made
was 12 years of age or younger, describing any of the offenses was 12 years of age or younger, describing any of the offenses
enumerated in 18 Pa.C.S. Chs. enumerated in 18 Pa.C.S. Chs.
25 (relating to criminal homicide), 25 (relating to criminal homicide),

27 (relating to assault), 27 (relating to assault),
29 (relating to kidnapping), 29 (relating to kidnapping),
31 (relating to sexual offenses), 31 (relating to sexual offenses),
35 (relating to burglary and other criminal 35 (relating to burglary and other criminal
intrusion), and intrusion), and
37 (relating to robbery), 37 (relating to robbery),
not otherwise admissible by statute or rule of evidence, is not otherwise admissible by statute or rule of evidence, is
admissible in evidence in any criminal or civil proceeding if: admissible in evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the evidence (1) the court finds, in an in camera hearing, that the evidence
is relevant and that the time, content and circumstances of the is relevant and that the time, content and circumstances of the
statement provide sufficient indicia of reliability; and statement provide sufficient indicia of reliability; and
(2) the child either: (2) the child either:
(i) testifies at the proceeding; or (i) testifies at the proceeding; or

(ii) is unavailable as a witness. (ii) is unavailable as a witness.
(a.1) Emotional distress.--In order to make a finding under (a.1) Emotional distress.--In order to make a finding under
subsection (a)(2) (ii) that the child is unavailable as a witness, subsection (a)(2) (ii) that the child is unavailable as a witness,
the court must determine, based on evidence presented to it, the court must determine, based on evidence presented to it,
that testimony by the child as a witness will result in the child that testimony by the child as a witness will result in the child
suffering serious emotional distress that would substantially suffering serious emotional distress that would substantially
impair the childs ability to reasonably communicate. In making impair the childs ability to reasonably communicate. In making
this determination, the court may do all of the following: this determination, the court may do all of the following:
(1) Observe and question the child, either inside or outside (1) Observe and question the child, either inside or outside
the courtroom. the courtroom.
person, such as a person who has dealt with the child in person, such as a person who has dealt with the child in
a medical or therapeutic setting. a medical or therapeutic setting.
(a.2) Counsel and confrontation.--If the court hears testimony (a.2) Counsel and confrontation.--If the court hears testimony
in connection with making a finding under subsection (a)(2)(ii), in connection with making a finding under subsection (a)(2)(ii),
all of the following apply: all of the following apply:
(1) Except as provided in paragraph (2), the defendant, (1) Except as provided in paragraph (2), the defendant,
the attorney for the defendant and the attorney for the the attorney for the defendant and the attorney for the
Commonwealth or, in the case of a civil proceeding, the Commonwealth or, in the case of a civil proceeding, the
attorney for the plaintiff has the right to be present. attorney for the plaintiff has the right to be present.
(2) If the court observes or questions the child, the court (2) If the court observes or questions the child, the court
shall not permit the defendant to be present. shall not permit the defendant to be present.
(b) Notice required.--A statement otherwise admissible under (b) Notice required.--A statement otherwise admissible under
subsection (a) shall not be received into evidence unless the subsection (a) shall not be received into evidence unless the
proponent of the statement notifies the adverse party of the proponent of the statement notifies the adverse party of the
proponents intention to offer the statement and the particulars proponents intention to offer the statement and the particulars
of the statement sufficiently in advance of the proceeding at of the statement sufficiently in advance of the proceeding at
which the proponent intends to offer the statement into evidence which the proponent intends to offer the statement into evidence
to provide the adverse party with a fair opportunity to prepare to provide the adverse party with a fair opportunity to prepare
to meet the statement.39 to meet the statement.39
A. Factors to be Considered for Admission A. Factors to be Considered for Admission
1. The Child Complainant testifies or is unavailable 1. The Child Complainant testifies or is unavailable
Pursuant to 42 Pa.Cons.Stat.Ann. 5985.1(a)(2)(ii), unless the child Pursuant to 42 Pa.Cons.Stat.Ann. 5985.1(a)(2)(ii), unless the child
victim testifies, the trial court must conclude that the child victim is unavailable victim testifies, the trial court must conclude that the child victim is unavailable
as a witness. In Commonwealth v. Kriner, 915 A.2d 653 (Pa. Super. 2007) as a witness. In Commonwealth v. Kriner, 915 A.2d 653 (Pa. Super. 2007)
(en banc), the Superior Court determined that unavailability is limited to the (en banc), the Superior Court determined that unavailability is limited to the
determination by the trial court of impending emotional distress; therefore, the determination by the trial court of impending emotional distress; therefore, the
death of the child prior to trial did not satisfy Section 5985.1(a)(2)(ii), and the death of the child prior to trial did not satisfy Section 5985.1(a)(2)(ii), and the
prior statement was not admissible under the Tender Years Hearsay Act. prior statement was not admissible under the Tender Years Hearsay Act.
In In re N.C., 74 A.3d 271 (Pa. Super. 2013), in a delinquency adjudication In In re N.C., 74 A.3d 271 (Pa. Super. 2013), in a delinquency adjudication
proceeding on the charge of aggravated indecent assault, the child complainant proceeding on the charge of aggravated indecent assault, the child complainant
was four years old at the time of the hearing, and was unable to provide any direct was four years old at the time of the hearing, and was unable to provide any direct
testimony about the alleged incident and eventually ended her examination by testimony about the alleged incident and eventually ended her examination by
becoming unresponsive by curling up into a fetal position. becoming unresponsive by curling up into a fetal position.
In Commonwealth v. Staruh, 2007 WL 4218003 (CCP Cumberland In Commonwealth v. Staruh, 2007 WL 4218003 (CCP Cumberland
County 2007), affd, 961 A.2d 1284 (Pa. Super. 2008)(table), appeal denied, 601 County 2007), affd, 961 A.2d 1284 (Pa. Super. 2008)(table), appeal denied, 601
Pa. 702, 973 A.2d 1006 (2009), the trial court permitted the hearsay statements Pa. 702, 973 A.2d 1006 (2009), the trial court permitted the hearsay statements
of the child victim because the child was available at trial and subjected to cross- of the child victim because the child was available at trial and subjected to cross-
examination. examination.
In Commonwealth v. Cesar, 911 A.2d 978 (Pa. Super. 2006), appeal denied, In Commonwealth v. Cesar, 911 A.2d 978 (Pa. Super. 2006), appeal denied,
593 Pa. 725, 928 A.2d 1289 (2007), in a case involving indecent assault and 593 Pa. 725, 928 A.2d 1289 (2007), in a case involving indecent assault and
related offenses, the trial court permitted a child victims mother, a detective, and related offenses, the trial court permitted a child victims mother, a detective, and
a social worker to testify as to the childs earlier hearsay statements because the a social worker to testify as to the childs earlier hearsay statements because the
child was present and the defense was given the opportunity to cross-examine child was present and the defense was given the opportunity to cross-examine
her at both the pre-trial hearing and trial. her at both the pre-trial hearing and trial.
In Commonwealth v. Lyons, 833 A.2d 245 (Pa. Super. 2003), the Superior In Commonwealth v. Lyons, 833 A.2d 245 (Pa. Super. 2003), the Superior
39 42 Pa.Cons.stat.ann. 5985.1. 39 42 Pa.Cons.stat.ann. 5985.1.
Court upheld the constitutionality of the tender years exception, especially Court upheld the constitutionality of the tender years exception, especially
5985.1(a.1), by pointing out that the statute requires the trial court to determine, 5985.1(a.1), by pointing out that the statute requires the trial court to determine,
in finding that the child victim is unavailable, whether forcing the child to testify in finding that the child victim is unavailable, whether forcing the child to testify
would result in such serious emotional distress to the child that she will not be would result in such serious emotional distress to the child that she will not be
able to reasonably communicate. Id. at 254. able to reasonably communicate. Id. at 254.
(a) Hearing Required for Unavailability (a) Hearing Required for Unavailability
In Commonwealth v. Kriner, 915 A.2d 653 (Pa. Super. 2007) (en In Commonwealth v. Kriner, 915 A.2d 653 (Pa. Super. 2007) (en
banc), a young girl was allegedly sexually assaulted by her stepfather. An banc), a young girl was allegedly sexually assaulted by her stepfather. An
investigation of the allegations was initiated in March of 2003, but the child investigation of the allegations was initiated in March of 2003, but the child
was killed in a car accident in August of 2003. The Commonwealth attempted was killed in a car accident in August of 2003. The Commonwealth attempted
to use Section 5985.1(a)(2)(ii) to submit hearsay evidence, but the Superior to use Section 5985.1(a)(2)(ii) to submit hearsay evidence, but the Superior
Court determined that Section 5985.1(a)(2)(ii) did not apply because the Court determined that Section 5985.1(a)(2)(ii) did not apply because the
prerequisite to a determination of unavailability under Section 5985.1(a)(2) prerequisite to a determination of unavailability under Section 5985.1(a)(2)
(ii) is that the trial court must determine, pursuant to Section 5985.1(a.1), (ii) is that the trial court must determine, pursuant to Section 5985.1(a.1),
whether the child will suffer emotional distress. Because the trial court could whether the child will suffer emotional distress. Because the trial court could
not make this determination given that the child was deceased, the Tender not make this determination given that the child was deceased, the Tender
Years Hearsay Act was not applicable. Years Hearsay Act was not applicable.
Using these principles as a guide, the language of Using these principles as a guide, the language of
5985.1 is patently clear as to when a child is unavailable 5985.1 is patently clear as to when a child is unavailable
so to qualify his or her statements under the tender years so to qualify his or her statements under the tender years
exception. Specifically, the statute requires the trial court exception. Specifically, the statute requires the trial court
to determine that the child will suffer serious emotional to determine that the child will suffer serious emotional
distress that would substantially impair the childs ability distress that would substantially impair the childs ability
to reasonably communicate in order for the child to be to reasonably communicate in order for the child to be
unavailable. This finding is a prerequisite to a determination unavailable. This finding is a prerequisite to a determination
of unavailability as evidenced by the words in order. By of unavailability as evidenced by the words in order. By
the plain language of the statute, there is no other manner, the plain language of the statute, there is no other manner,
method, procedure, or definition of what constitutes method, procedure, or definition of what constitutes
unavailability. unavailability.
915 A.2d at 658-659 (emphasis in original). 915 A.2d at 658-659 (emphasis in original).
2. Admissibility Depends Upon Whether the Statement Is Testimonial or 2. Admissibility Depends Upon Whether the Statement Is Testimonial or
Nontestimonial Nontestimonial
The criteria for admission of the hearsay depends upon whether the The criteria for admission of the hearsay depends upon whether the
prior statement is testimonial or nontestimonial. If nontestimonial, then the prior statement is testimonial or nontestimonial. If nontestimonial, then the
pertinent law of the state prevails regarding traditional exceptions to hearsay. pertinent law of the state prevails regarding traditional exceptions to hearsay.
If testimonial in nature, then the indicia of reliability standard of 5985.1 is If testimonial in nature, then the indicia of reliability standard of 5985.1 is
not utilized but rather the Sixth Amendment demands what the common law not utilized but rather the Sixth Amendment demands what the common law
required; unavailability and a prior opportunity for cross-examination. In re required; unavailability and a prior opportunity for cross-examination. In re
N.C., 74 A.3d 271, 275 (Pa. Super. 2013) (quoting Crawford v. Washington, 541 N.C., 74 A.3d 271, 275 (Pa. Super. 2013) (quoting Crawford v. Washington, 541
U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). See also, Commonwealth U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). See also, Commonwealth
v. Allshouse, 614 Pa. 229, 246, 36 A.3d 163, 173 (2012), cert. denied, 133 S.Ct. v. Allshouse, 614 Pa. 229, 246, 36 A.3d 163, 173 (2012), cert. denied, 133 S.Ct.
2336, 185 L.Ed.2d 1063 (2013). The Supreme Court left no doubt that when a 2336, 185 L.Ed.2d 1063 (2013). The Supreme Court left no doubt that when a
declarant appears for cross-examination at trial, the confrontation clause places declarant appears for cross-examination at trial, the confrontation clause places
no constraints on the use of prior testimonial statements. no constraints on the use of prior testimonial statements.
(a) Nontestimonial (a) Nontestimonial
If the proposed hearsay is nontestimonial, then there are no If the proposed hearsay is nontestimonial, then there are no
Confrontation Clause issues and its admission depends upon the requirements Confrontation Clause issues and its admission depends upon the requirements
of permissive hearsay exceptions. Commonwealth v. Allshouse, 614 Pa. 229, of permissive hearsay exceptions. Commonwealth v. Allshouse, 614 Pa. 229,
245-246, 36 A.3d 163, 173 (2012), cert. denied, --- U.S. ---, 133 S.Ct. 2336, 185 245-246, 36 A.3d 163, 173 (2012), cert. denied, --- U.S. ---, 133 S.Ct. 2336, 185
L.Ed.2d 1063 (2013). When statements are nontestimonial, the confrontation L.Ed.2d 1063 (2013). When statements are nontestimonial, the confrontation
clause places no restriction on their introduction except for the traditional clause places no restriction on their introduction except for the traditional
limitations upon hearsay evidence. Id. (quoting Davis v. Washington, 547 limitations upon hearsay evidence. Id. (quoting Davis v. Washington, 547
U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)). U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)).
Therefore, if nontestimonial, then the trial court must be satisfied that Therefore, if nontestimonial, then the trial court must be satisfied that
the requirements of the Tender Years Hearsay Act, 42 Pa.Cons.Stat.Ann. the requirements of the Tender Years Hearsay Act, 42 Pa.Cons.Stat.Ann.
5985.1 have been satisfied, and need not be concerned with constitutional 5985.1 have been satisfied, and need not be concerned with constitutional
analysis. The requirements for admission include: analysis. The requirements for admission include:
1 The notice requirements of 5985.1(b) were satisfied 1 The notice requirements of 5985.1(b) were satisfied
2 - An in camera hearing at which the trial Court finds: 2 - An in camera hearing at which the trial Court finds:
(i) The hearsay evidence is relevant (i) The hearsay evidence is relevant
(ii) The time, content and circumstances of the statement (ii) The time, content and circumstances of the statement
provide sufficient indicia of reliability provide sufficient indicia of reliability
3 - the child victim or witness either: 3 - the child victim or witness either:
(i) Testifies at the proceeding, or (i) Testifies at the proceeding, or

(ii) Is unavailable as a witness (ii) Is unavailable as a witness
The child may be deemed unavailable due to The child may be deemed unavailable due to
emotional distress under 5985.1(a.1). emotional distress under 5985.1(a.1).
If the trial court hears testimony in order to If the trial court hears testimony in order to
determine is a child is unavailable, then the determine is a child is unavailable, then the
requirements of 5985.1(b) must be followed. requirements of 5985.1(b) must be followed.
(b) Testimonial (b) Testimonial
If the out-of-court statement is testimonial, then its admission is If the out-of-court statement is testimonial, then its admission is
subject to the protections of the Confrontation Clause, as per Crawford subject to the protections of the Confrontation Clause, as per Crawford
v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). See v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). See
Commonwealth v. Allshouse, 614 Pa. 229, 250, 36 A.3d 163, 175 (2012), cert. Commonwealth v. Allshouse, 614 Pa. 229, 250, 36 A.3d 163, 175 (2012), cert.
denied, --- U.S. ---, 133 S.Ct. 2336, 185 L.Ed.2d 1063 (2013); In re N.C., 74 A.3d denied, --- U.S. ---, 133 S.Ct. 2336, 185 L.Ed.2d 1063 (2013); In re N.C., 74 A.3d
271, 277 (Pa. Super. 2013). 271, 277 (Pa. Super. 2013).
If testimonial in nature, the hearsay statement will not be admissible If testimonial in nature, the hearsay statement will not be admissible
unless the declarant is unavailable and the defendant had the opportunity unless the declarant is unavailable and the defendant had the opportunity
to cross-examine the declarant when the statement was taken. See to cross-examine the declarant when the statement was taken. See
Commonwealth v. Allshouse, 614 Pa. at 243, 36 A.3d at 171; In re N.C., 74 Commonwealth v. Allshouse, 614 Pa. at 243, 36 A.3d at 171; In re N.C., 74
A.3d at 278. As the Pennsylvania Supreme Court stated in Allshouse: A.3d at 278. As the Pennsylvania Supreme Court stated in Allshouse:
Accordingly, the [Crawford v. Washington, 541 U.S. 36, Accordingly, the [Crawford v. Washington, 541 U.S. 36,
124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)] Court held the 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)] Court held the
Confrontation Clause prohibits out-of-court testimonial Confrontation Clause prohibits out-of-court testimonial
statements by a witness, regardless of whether the statements by a witness, regardless of whether the
statements are deemed reliable by the trial court, unless statements are deemed reliable by the trial court, unless
(1) the witness is unavailable, and (2) the defendant had a (1) the witness is unavailable, and (2) the defendant had a
prior opportunity to cross-examine the witness: prior opportunity to cross-examine the witness:
Where nontestimonial hearsay is at issue, it is wholly Where nontestimonial hearsay is at issue, it is wholly
consistent with the Framers design to afford the States consistent with the Framers design to afford the States
flexibility in their development of hearsay lawas flexibility in their development of hearsay lawas
does [Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 does [Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65
L.Ed.2d 597 (1980)], and as would an approach that L.Ed.2d 597 (1980)], and as would an approach that
exempted such statements from Confrontation Clause exempted such statements from Confrontation Clause
scrutiny altogether. Where testimonial evidence is at scrutiny altogether. Where testimonial evidence is at
issue, however, the Sixth Amendment demands what issue, however, the Sixth Amendment demands what
the common law required: unavailability and a prior the common law required: unavailability and a prior
opportunity for cross-examination. opportunity for cross-examination.
Commonwealth v. Allshouse, 614 Pa. at 243, 36 A.3d at 171. Commonwealth v. Allshouse, 614 Pa. at 243, 36 A.3d at 171.
(c) Determination of Testimonial or Nontestimonial (c) Determination of Testimonial or Nontestimonial
In Commonwealth v. Yohe, --- Pa. ---, 79 A.3d 520 (2013), the In Commonwealth v. Yohe, --- Pa. ---, 79 A.3d 520 (2013), the
Pennsylvania Supreme Court had the occasion to again discuss the distinction Pennsylvania Supreme Court had the occasion to again discuss the distinction
between testimonial and nontestimonial statements: between testimonial and nontestimonial statements:
In [Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. In [Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct.
1354, 158 L.Ed.2d 177 (2004)] the Court held that the Sixth 1354, 158 L.Ed.2d 177 (2004)] the Court held that the Sixth
Amendment guarantees a defendants right to confront Amendment guarantees a defendants right to confront
those who bear testimony against him, and defined those who bear testimony against him, and defined
testimony as [a] solemn declaration or affirmation made testimony as [a] solemn declaration or affirmation made
for the purpose of establishing or proving some fact. The for the purpose of establishing or proving some fact. The
Confrontation Clause, the High Court explained, prohibits Confrontation Clause, the High Court explained, prohibits
out-of-court testimonial statements by a witness unless out-of-court testimonial statements by a witness unless
the witness is unavailable and the defendant had a prior the witness is unavailable and the defendant had a prior
opportunity for cross-examination. Id. at 53-56, 124 S.Ct. opportunity for cross-examination. Id. at 53-56, 124 S.Ct.
1354. 1354.
Commonwealth v. Yohe, 79 A.3d at 531. Again quoting from Crawford, the Commonwealth v. Yohe, 79 A.3d at 531. Again quoting from Crawford, the
Pennsylvania Supreme Court explained the class of testimonial statements Pennsylvania Supreme Court explained the class of testimonial statements
covered by the Sixth Amendment: covered by the Sixth Amendment:
Ex parte in-court testimony or its functional equivalent - that is, Ex parte in-court testimony or its functional equivalent - that is,
material such as affidavits, custodial examinations, prior testimony material such as affidavits, custodial examinations, prior testimony
that the defendant was unable to cross-examine, or similar pretrial that the defendant was unable to cross-examine, or similar pretrial
statements that declarants would reasonably expect to be used statements that declarants would reasonably expect to be used
prosecutorially; prosecutorially;
Extrajudicial statements . . . contained in formalized testimonial Extrajudicial statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or materials, such as affidavits, depositions, prior testimony, or
confessions; confessions;
Statements that were made under circumstances which would lead an Statements that were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be objective witness reasonably to believe that the statement would be
available for use at a later trial. available for use at a later trial.
Commonwealth v. Yohe, 79 A.3d at 531 n. 11. Commonwealth v. Yohe, 79 A.3d at 531 n. 11.
Whether a statement is testimonial depends on its primary purpose: Whether a statement is testimonial depends on its primary purpose:
Statements are nontestimonial when made in the course Statements are nontestimonial when made in the course
of police interrogation under circumstances objectively of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency. to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later criminal or prove past events potentially relevant to later criminal
prosecution. prosecution.
Commonwealth v. Yohe, 79 A.3d at 531 (quoting Davis v. Washington, 547 Commonwealth v. Yohe, 79 A.3d at 531 (quoting Davis v. Washington, 547
U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)). U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)).
Trial courts should use the primary purpose test from Michigan v. Trial courts should use the primary purpose test from Michigan v.
Bryant, --- U.S. ---, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), which is if the primary Bryant, --- U.S. ---, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), which is if the primary
purpose of the prior statement was to enable police to render assistance to meet purpose of the prior statement was to enable police to render assistance to meet
an ongoing emergency, then the statement is nontestimonial. Additionally, an ongoing emergency, then the statement is nontestimonial. Additionally,
there may be other circumstances, aside from ongoing emergencies, when a there may be other circumstances, aside from ongoing emergencies, when a
statement is not procured with a primary purpose of creating an out-of-court statement is not procured with a primary purpose of creating an out-of-court
substitute for trial testimony. substitute for trial testimony.
When the statement is made in response to interrogation, the focus When the statement is made in response to interrogation, the focus
must be on the perspective of the parties at the time of the interrogation, must be on the perspective of the parties at the time of the interrogation,
and not based on hindsight, for [i]f the information the parties knew and not based on hindsight, for [i]f the information the parties knew
at the time of the encounter would lead a reasonable person to believe at the time of the encounter would lead a reasonable person to believe
that there was an emergency, even if that belief was later proved that there was an emergency, even if that belief was later proved
incorrect, that is sufficient for purposes of the Confrontation Clause. incorrect, that is sufficient for purposes of the Confrontation Clause.
These nontestimonial statements may be admissible as long as there is These nontestimonial statements may be admissible as long as there is
compliance with 5985.1 without running afoul of the Confrontation Clause. compliance with 5985.1 without running afoul of the Confrontation Clause.
Statements are testimonial in nature when the circumstances Statements are testimonial in nature when the circumstances
objectively indicate that there is no such ongoing emergency, and that the objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution. Commonwealth v. potentially relevant to later criminal prosecution. Commonwealth v.
Allshouse, 614 Pa. at 244, 36 A.3d at 172. Allshouse, 614 Pa. at 244, 36 A.3d at 172.
B. Sufficient Indicia of Reliability B. Sufficient Indicia of Reliability
Any statement admitted under 5985.1, i.e., nontestimonial, must Any statement admitted under 5985.1, i.e., nontestimonial, must
possess sufficient indicia of reliability, as determined from the time, content, possess sufficient indicia of reliability, as determined from the time, content,
and circumstances of its making. The factors to be considered by a trial court and circumstances of its making. The factors to be considered by a trial court
in deciding whether the child-declarant was likely to be telling the truth when in deciding whether the child-declarant was likely to be telling the truth when
the statement was made include: the statement was made include:
(1) the spontaneity and consistent repetition of the statement(s); (1) the spontaneity and consistent repetition of the statement(s);
(2) the mental state of the declarant; (2) the mental state of the declarant;
(3) the use of terminology unexpected of a child of similar age; and (3) the use of terminology unexpected of a child of similar age; and
(4) the lack of motive to fabricate. (4) the lack of motive to fabricate.
Commonwealth v. Barnett, 50 A.3d 176, 182 (Pa. Super. 2012), appeal denied, --- Pa. ---, Commonwealth v. Barnett, 50 A.3d 176, 182 (Pa. Super. 2012), appeal denied, --- Pa. ---,
63 A.3d 771 (2013). 63 A.3d 771 (2013).
C. Notice Requirement C. Notice Requirement
Pennsylvania courts, thus far, have strictly applied the notice requirements of the Pennsylvania courts, thus far, have strictly applied the notice requirements of the
tender years exception. In Commonwealth v. Crossley, 711 A.2d 1025, 1028 (Pa. Super. tender years exception. In Commonwealth v. Crossley, 711 A.2d 1025, 1028 (Pa. Super.
1998), a panel of the Superior Court held that the tender years exception statute requires 1998), a panel of the Superior Court held that the tender years exception statute requires
more than ordinary discovery and mandates heightened discovery. The statute requires more than ordinary discovery and mandates heightened discovery. The statute requires
that the proponent of the out-of-court statement, in order to provide the adverse party that the proponent of the out-of-court statement, in order to provide the adverse party
with a fair opportunity to prepare, must: with a fair opportunity to prepare, must:
notify the adverse party, sufficiently in advance of trial, of the proponents notify the adverse party, sufficiently in advance of trial, of the proponents
intention to use the statement at trial; and intention to use the statement at trial; and
notify the adverse party, sufficiently in advance of trial, of the notify the adverse party, sufficiently in advance of trial, of the
particulars of the statement. particulars of the statement.
In Commonwealth v. ODrain, 829 A.2d 316, 320321 (Pa. Super. 2003), the In Commonwealth v. ODrain, 829 A.2d 316, 320321 (Pa. Super. 2003), the
notice requirement was satisfied when the Commonwealth gave separate and distinct notice requirement was satisfied when the Commonwealth gave separate and distinct
notice, beyond the requirements of discovery, to defendant of its intention to proceed by notice, beyond the requirements of discovery, to defendant of its intention to proceed by
way of the tender years exception. The Commonwealth did not merely provide defendant way of the tender years exception. The Commonwealth did not merely provide defendant
with discovery packet containing relatives statements the Commonwealth specified in with discovery packet containing relatives statements the Commonwealth specified in
its notice that it might introduce at trial the testimony that child told her mother that the its notice that it might introduce at trial the testimony that child told her mother that the
defendant kissed her with his tongue on various parts of her body. defendant kissed her with his tongue on various parts of her body.
In Commonwealth v. Hunzer, 868 A.2d 498, 511 (Pa. Super. 2005), appeal denied, In Commonwealth v. Hunzer, 868 A.2d 498, 511 (Pa. Super. 2005), appeal denied,
584 Pa. 673, 880 A.2d 1237 (2005), the Court stated that it was not necessary that the 584 Pa. 673, 880 A.2d 1237 (2005), the Court stated that it was not necessary that the
notice contain exact word-for-word recitation of the out-of-court statement, but only notice contain exact word-for-word recitation of the out-of-court statement, but only
that notice contain the particulars of the statement. that notice contain the particulars of the statement.
7.12 COMPETENCY OF ACCUSED 7.12 COMPETENCY OF ACCUSED
Pennsylvanias definition of incompetence is statutory: Pennsylvanias definition of incompetence is statutory:
50 Pa.stat. 7402. Incompetence to proceed on criminal 50 Pa.stat. 7402. Incompetence to proceed on criminal
charges and lack of criminal responsibility as defense charges and lack of criminal responsibility as defense
(a) Definition of Incompetency.--Whenever a person who (a) Definition of Incompetency.--Whenever a person who
has been charged with a crime is found to be substantially has been charged with a crime is found to be substantially
unable to understand the nature or object of the proceedings unable to understand the nature or object of the proceedings
against him or to participate and assist in his defense, he shall against him or to participate and assist in his defense, he shall
be deemed incompetent to be tried, convicted or sentenced so be deemed incompetent to be tried, convicted or sentenced so
long as such incapacity continues. long as such incapacity continues.
A defendant is presumed to be competent to stand trial. See Commonwealth A defendant is presumed to be competent to stand trial. See Commonwealth
v. duPont, 545 Pa. 564, 681 A.2d 1328 (1996). The Pennsylvania Supreme Court, v. duPont, 545 Pa. 564, 681 A.2d 1328 (1996). The Pennsylvania Supreme Court,
in Commonwealth ex rel. Hilberry v. Maroney, 424 Pa. 493, 227 A.2d 159 (1967), in Commonwealth ex rel. Hilberry v. Maroney, 424 Pa. 493, 227 A.2d 159 (1967),
articulated the test for determining whether one is competent to stand trial: articulated the test for determining whether one is competent to stand trial:
[T]he test to be applied in determining the legal sufficiency of [T]he test to be applied in determining the legal sufficiency of
[a defendants] mental capacity to stand trial ... is ... his ability [a defendants] mental capacity to stand trial ... is ... his ability
to comprehend his position as one accused of murder and to to comprehend his position as one accused of murder and to
cooperate with his counsel in making a rational defense. See cooperate with his counsel in making a rational defense. See
Commonwealth v. Moon, [383 Pa. 18, 117 A.2d 96 (1955)] and Commonwealth v. Moon, [383 Pa. 18, 117 A.2d 96 (1955)] and
Commonwealth ex rel. Hilberry v. Maroney, [417 Pa. 534, 207 Commonwealth ex rel. Hilberry v. Maroney, [417 Pa. 534, 207
A.2d 794(1965)]. Or stated another way, did he have sufficient A.2d 794(1965)]. Or stated another way, did he have sufficient
ability at the pertinent time to consult with his lawyers with a ability at the pertinent time to consult with his lawyers with a
reasonable degree of rational understanding, and have a rational reasonable degree of rational understanding, and have a rational
as well as a factual understanding of the proceedings against him. as well as a factual understanding of the proceedings against him.
See Dusky v. United States, 362 U.S. 402, [80 S.Ct. 788, 4 L.Ed.2d See Dusky v. United States, 362 U.S. 402, [80 S.Ct. 788, 4 L.Ed.2d
824] (1960). Otherwise the proceedings would lack due process: 824] (1960). Otherwise the proceedings would lack due process:
Bishop v. United States, 350 U.S. 91 [76 S.Ct. 440, 100 L.Ed.835] Bishop v. United States, 350 U.S. 91 [76 S.Ct. 440, 100 L.Ed.835]
(1956). (1956).
Thus, the burden is on the defendant to prove, by a preponderance of the Thus, the burden is on the defendant to prove, by a preponderance of the
evidence, that he was either unable to understand the nature of the proceedings evidence, that he was either unable to understand the nature of the proceedings
against him or to participate in his own defense. In re R.D., 44 A.3d 657, 665 (Pa. against him or to participate in his own defense. In re R.D., 44 A.3d 657, 665 (Pa.
Super. 2012); Commonwealth v. Santiago, 579 Pa. 46, 67, 855 A.2d 682, 694 (2004). Super. 2012); Commonwealth v. Santiago, 579 Pa. 46, 67, 855 A.2d 682, 694 (2004).
Moreover, the determination of competency rests in the sound discretion of the trial Moreover, the determination of competency rests in the sound discretion of the trial
court. Commonwealth v. Hughes, 521 Pa. 423, 436, 555 A.2d 1264, 1270 (1989); court. Commonwealth v. Hughes, 521 Pa. 423, 436, 555 A.2d 1264, 1270 (1989);
Commonwealth v. Stevenson, 64 A.3d 715, 720 (Pa. Super. 2013), appeal denied, --- Pa. Commonwealth v. Stevenson, 64 A.3d 715, 720 (Pa. Super. 2013), appeal denied, --- Pa.
---, 80 A.3d 777 (2013). ---, 80 A.3d 777 (2013).
When a competency hearing takes place, incompetency may be established by a When a competency hearing takes place, incompetency may be established by a
preponderance of the evidence. 50 Pa.Stat. 7402(d) provides: preponderance of the evidence. 50 Pa.Stat. 7402(d) provides:
(d) Hearing; When Required.--The court, either on application (d) Hearing; When Required.--The court, either on application
or on its own motion, may order an incompetency examination or on its own motion, may order an incompetency examination
at any stage in the proceedings and may do so without a hearing at any stage in the proceedings and may do so without a hearing
unless the examination is objected to by the person charged with unless the examination is objected to by the person charged with
a crime or by his counsel. In such event, an examination shall a crime or by his counsel. In such event, an examination shall
be ordered only after determination upon a hearing that there be ordered only after determination upon a hearing that there
is a prima facie question of incompetency. Upon completion is a prima facie question of incompetency. Upon completion
of the examination, a determination of incompetency shall be of the examination, a determination of incompetency shall be
made by the court where incompetency is established by a made by the court where incompetency is established by a
preponderance of the evidence. preponderance of the evidence.
The sensitive nature of competency determinations requires the appellate The sensitive nature of competency determinations requires the appellate
courts to afford great deference to the conclusions of the trial court, which has had courts to afford great deference to the conclusions of the trial court, which has had
the opportunity to observe the defendant personally. When the record supports the the opportunity to observe the defendant personally. When the record supports the
trial courts determination, the appellate court will not disturb it. Commonwealth v. trial courts determination, the appellate court will not disturb it. Commonwealth v.
Stevenson, 64 A.3d 715, 720 (Pa. Super. 2013), appeal denied, --- Pa. ---, 80 A.3d 777 Stevenson, 64 A.3d 715, 720 (Pa. Super. 2013), appeal denied, --- Pa. ---, 80 A.3d 777
(2013). (2013).
7.13 COMPETENCY OF WITNESSES 7.13 COMPETENCY OF WITNESSES
A. Pennsylvania Rule of Evidence 601 A. Pennsylvania Rule of Evidence 601
(a) General Rule. Every person is competent to be a witness (a) General Rule. Every person is competent to be a witness
except as otherwise provided by statute or in these rules. except as otherwise provided by statute or in these rules.
(b) Disqualification for Specific Defects. A person is (b) Disqualification for Specific Defects. A person is
incompetent to testify if the court finds that because of a mental incompetent to testify if the court finds that because of a mental
condition or immaturity the person: condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving (1) is, or was, at any relevant time, incapable of perceiving
accurately; accurately;
(2) is unable to express himself or herself so as to be understood (2) is unable to express himself or herself so as to be understood
either directly or through an interpreter; either directly or through an interpreter;
(3) has an impaired memory; or (3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the truth.40 (4) does not sufficiently understand the duty to tell the truth.40
42 Pa.Cons.Stat.Ann. 5911 provides that, except as otherwise provided, all 42 Pa.Cons.Stat.Ann. 5911 provides that, except as otherwise provided, all
persons are competent witnesses in any criminal proceeding persons are competent witnesses in any criminal proceeding
Pennsylvania statutory law provides several instances in which witnesses are Pennsylvania statutory law provides several instances in which witnesses are
incompetent. See, e.g., 42 Pa.Cons.Stat.Ann. 5922 (persons convicted in a Pennsylvania incompetent. See, e.g., 42 Pa.Cons.Stat.Ann. 5922 (persons convicted in a Pennsylvania
court of perjury incompetent in civil cases); 42 Pa.Cons.Stat.Ann. 5924 (spouses court of perjury incompetent in civil cases); 42 Pa.Cons.Stat.Ann. 5924 (spouses
incompetent to testify against each other in civil cases with certain exceptions specified. incompetent to testify against each other in civil cases with certain exceptions specified.
Pa.R.Evid. 601(b) is consistent with Pennsylvania law concerning the competency Pa.R.Evid. 601(b) is consistent with Pennsylvania law concerning the competency
of persons with a mental defect and children of tender years. See Commonwealth v. of persons with a mental defect and children of tender years. See Commonwealth v.
Goldblum, 498 Pa. 455, 447 A.2d 234 (1982) (mental capacity); Rosche v. McCoy, 397 Goldblum, 498 Pa. 455, 447 A.2d 234 (1982) (mental capacity); Rosche v. McCoy, 397
Pa. 615, 156 A.2d 307 (1959) (immaturity). Pa. 615, 156 A.2d 307 (1959) (immaturity).
Commonwealth v. Knapp, 542 A.2d 546, 552 (Pa. Super. 1988): Superior Commonwealth v. Knapp, 542 A.2d 546, 552 (Pa. Super. 1988): Superior
Court affirmed in rape case because, inter alia, 11 year-old victim exhibited a Court affirmed in rape case because, inter alia, 11 year-old victim exhibited a
sufficient awareness of his moral responsibility to testify truthfully. sufficient awareness of his moral responsibility to testify truthfully.
Commonwealth v. Gaerttner, 484 A.2d 92, 98 (Pa. Super. 1984): Victim of Commonwealth v. Gaerttner, 484 A.2d 92, 98 (Pa. Super. 1984): Victim of
sexual assault, ten years old at time of offense and 11 years old at time of trial, sexual assault, ten years old at time of offense and 11 years old at time of trial,
was competent in that she had the mental capacity to observe and remember was competent in that she had the mental capacity to observe and remember
what she had observed. what she had observed.
The application of the standards in Pa.R.Evid. 601(b) is a factual question to be The application of the standards in Pa.R.Evid. 601(b) is a factual question to be
resolved by the Court. Expert testimony has been used when competency under these resolved by the Court. Expert testimony has been used when competency under these
standards has been an issue. E.g., Commonwealth v. Baker, 466 Pa. 479, 353 A.2d standards has been an issue. E.g., Commonwealth v. Baker, 466 Pa. 479, 353 A.2d
454 (1976)(competency hearing held in the absence of the jury; doctors testified on 454 (1976)(competency hearing held in the absence of the jury; doctors testified on
behalf of prosecution and defense regarding competency of witness); Commonwealth behalf of prosecution and defense regarding competency of witness); Commonwealth
v. Gaerttner, 484 A.2d 92 (Pa. Super. 1984). Pa.R.Evid. 601(b) is intended to preserve v. Gaerttner, 484 A.2d 92 (Pa. Super. 1984). Pa.R.Evid. 601(b) is intended to preserve
existing law and not to expand it. existing law and not to expand it.
B. Spousal Competence B. Spousal Competence
Spousal competence in criminal cases is governed by 42 Pa.Cons.Stat.Ann. Spousal competence in criminal cases is governed by 42 Pa.Cons.Stat.Ann.
5913 which provides, in pertinent part: 5913 which provides, in pertinent part:
Except as otherwise provided in this subchapter, in a criminal Except as otherwise provided in this subchapter, in a criminal
proceeding a person shall have the privilege, which he or she proceeding a person shall have the privilege, which he or she
may waive, not to testify against his or her then lawful spouse may waive, not to testify against his or her then lawful spouse
except that there shall be no such privilege: except that there shall be no such privilege:
... ...
(2) in any criminal proceeding against either for bodily (2) in any criminal proceeding against either for bodily
injury or violence attempted, done or threatened upon the injury or violence attempted, done or threatened upon the
other, or upon the minor children of said husband and other, or upon the minor children of said husband and
wife, or the minor children of either of them, or any minor wife, or the minor children of either of them, or any minor
child in their care or custody, or in the care or custody of child in their care or custody, or in the care or custody of
either of them; either of them;
... ...
(4) in any criminal proceeding in which one of the (4) in any criminal proceeding in which one of the
charges pending against the defendant includes murder, charges pending against the defendant includes murder,
involuntary deviate sexual intercourse or rape.41 involuntary deviate sexual intercourse or rape.41
Not only is a spouse competent to testify when these exceptions apply, he or she Not only is a spouse competent to testify when these exceptions apply, he or she
may be compelled to testify. Commonwealth v. Hess, 411 A.2d 830, 833 (Pa. Super. may be compelled to testify. Commonwealth v. Hess, 411 A.2d 830, 833 (Pa. Super.
1979), appeal dismissed, 499 Pa. 206, 452 A.2d 1011 (1982). 1979), appeal dismissed, 499 Pa. 206, 452 A.2d 1011 (1982).
Commonwealth v. Kirkner, 569 Pa. 499, 805 A.2d 514 (2002): the spousal Commonwealth v. Kirkner, 569 Pa. 499, 805 A.2d 514 (2002): the spousal
privilege did not apply to the wife because the prosecution involved bodily privilege did not apply to the wife because the prosecution involved bodily
injury and violence to wife from husband. Trial Court improperly granted injury and violence to wife from husband. Trial Court improperly granted
wifes motion to quash the subpoena issued against her she simply had wifes motion to quash the subpoena issued against her she simply had
no privilege. no privilege.
1. Spouse or minor must be in protected class 1. Spouse or minor must be in protected class
The statutory exception to the spousal privilege in criminal proceedings, The statutory exception to the spousal privilege in criminal proceedings,
provided in 42 Pa. Cons. Stat. 5913, is limited to proceedings in which the provided in 42 Pa. Cons. Stat. 5913, is limited to proceedings in which the
41 42 Pa.Cons.stat.ann. 5913 41 42 Pa.Cons.stat.ann. 5913
person was on trial for an act against his spouse, or against a minor child in the person was on trial for an act against his spouse, or against a minor child in the
protected class. protected class.
Commonwealth v. Scott, 516 Pa. 346, 532 A.2d 426 (1987) Defendants Commonwealth v. Scott, 516 Pa. 346, 532 A.2d 426 (1987) Defendants
estranged wife could not testify about the defendants violence toward estranged wife could not testify about the defendants violence toward
her boyfriend the exception to spousal privilege applies only if a her boyfriend the exception to spousal privilege applies only if a
spouse or minor child in the protected class is one of the victims. spouse or minor child in the protected class is one of the victims.
Commonwealth v. John, 596 A.2d 834 (Pa. Super. 1991) (Spousal Commonwealth v. John, 596 A.2d 834 (Pa. Super. 1991) (Spousal
privilege did not apply in a criminal proceeding where the husband privilege did not apply in a criminal proceeding where the husband
was on trial for attempting to burn down a bingo hall that his wife was was on trial for attempting to burn down a bingo hall that his wife was
in). in).
2. Requirement of a valid marriage 2. Requirement of a valid marriage
The basis for invoking the marital privilege is the existence of a valid The basis for invoking the marital privilege is the existence of a valid
marriage; where at the time the woman was living with defendant she was still marriage; where at the time the woman was living with defendant she was still
legally married to another man, therefore the woman and defendant were not legally married to another man, therefore the woman and defendant were not
validly married so the marital privilege did not apply. Commonwealth v. Maxwell, validly married so the marital privilege did not apply. Commonwealth v. Maxwell,
505 Pa. 152, 477 A.2d 1309 (1984), cert. denied, 469 U.S. 971, 105 S.Ct. 370, 83 505 Pa. 152, 477 A.2d 1309 (1984), cert. denied, 469 U.S. 971, 105 S.Ct. 370, 83
L.Ed.2d 306 (1984). L.Ed.2d 306 (1984).
C. Competency of Child C. Competency of Child
The determination of the competency of victims or witnesses is left to the sound The determination of the competency of victims or witnesses is left to the sound
discretion of the trial judge and will not be reversed absent a clear abuse of discretion. discretion of the trial judge and will not be reversed absent a clear abuse of discretion.
675, 912 A.2d 1291 (2006)(case involved rape and related charges issue of competency 675, 912 A.2d 1291 (2006)(case involved rape and related charges issue of competency
of six year old child). of six year old child).
The test for competency of a minor witness or victim has been well established: The test for competency of a minor witness or victim has been well established:
Every witness is presumed competent. A party who challenges Every witness is presumed competent. A party who challenges
the competency of a minor witness must prove by clear and the competency of a minor witness must prove by clear and
convincing evidence that the witness lacks the minimal capacity convincing evidence that the witness lacks the minimal capacity
... (1) to communicate, (2) to observe an event and accurately ... (1) to communicate, (2) to observe an event and accurately
recall that observation, and (3) to understand the necessity to recall that observation, and (3) to understand the necessity to
speak the truth. speak the truth.
--- Pa. ---, 80 A.3d 776 (2013). --- Pa. ---, 80 A.3d 776 (2013).
Furthermore, [a] childs competency to testify is a threshold legal issue that a Furthermore, [a] childs competency to testify is a threshold legal issue that a
trial court must decide, and an appellate court will not disturb its determination absent trial court must decide, and an appellate court will not disturb its determination absent
an abuse of discretion. Commonwealth v. Washington, 554 Pa. 559, 563, 722 A.2d 643, an abuse of discretion. Commonwealth v. Washington, 554 Pa. 559, 563, 722 A.2d 643,
646 (1998) (citation omitted & emphasis added). 646 (1998) (citation omitted & emphasis added).
In addressing an objection to the competency of a minor who testifies, there are In addressing an objection to the competency of a minor who testifies, there are
a number of standard policies: a number of standard policies:
(1) a child witness, like any other witness, is presumed competent to testify (1) a child witness, like any other witness, is presumed competent to testify
unless proven otherwise. In Interest of J.R., 648 A.2d 28, 31 (Pa. Super. unless proven otherwise. In Interest of J.R., 648 A.2d 28, 31 (Pa. Super.
(2) the burden to prove that a witness is not competent falls on the objecting (2) the burden to prove that a witness is not competent falls on the objecting
party. Commonwealth v. Short, 420 A.2d 694, 696 (Pa. Super. 1980)(rape party. Commonwealth v. Short, 420 A.2d 694, 696 (Pa. Super. 1980)(rape
case in which defense challenged testimony of child victim). case in which defense challenged testimony of child victim).
(3) the determination of a witnesss competency to testify is left to the sound (3) the determination of a witnesss competency to testify is left to the sound
discretion of the trial judge, and the judges ruling on the matter will not discretion of the trial judge, and the judges ruling on the matter will not
be reversed absent a flagrant abuse of that discretion. Commonwealth v. be reversed absent a flagrant abuse of that discretion. Commonwealth v.
Delbridge, 580 Pa. 68, 73, 859 A.2d 1254, 1257 (2004) (case involved a child Delbridge, 580 Pa. 68, 73, 859 A.2d 1254, 1257 (2004) (case involved a child
sexual abuse victim). sexual abuse victim).
(4) When the witness is under fourteen years of age, there must be a searching (4) When the witness is under fourteen years of age, there must be a searching
judicial inquiry as to mental capacity, but discretion nonetheless resides in the judicial inquiry as to mental capacity, but discretion nonetheless resides in the
trial judge to make the ultimate decision as to competency. Commonwealth trial judge to make the ultimate decision as to competency. Commonwealth
v. D.J.A., 800 A.2d 965, 969 (Pa. Super. 2002), appeal denied, 579 Pa. 700, 857 v. D.J.A., 800 A.2d 965, 969 (Pa. Super. 2002), appeal denied, 579 Pa. 700, 857
A.2d 677 (2004). A.2d 677 (2004).
(5) Commonwealth v. Hunzer, 868 A.2d 498, 507 (Pa. Super. 2005), appeal (5) Commonwealth v. Hunzer, 868 A.2d 498, 507 (Pa. Super. 2005), appeal
denied, 584 Pa. 673, 880 A.2d 1237 (2005): In making its determination, the denied, 584 Pa. 673, 880 A.2d 1237 (2005): In making its determination, the
court must inquire whether the child possesses: court must inquire whether the child possesses:
i. capacity to communicate, including as it does both an ability i. capacity to communicate, including as it does both an ability
to understand questions and an ability to frame and express to understand questions and an ability to frame and express
intelligent answers, intelligent answers,
ii. mental capacity to observe the occurrence itself and the ii. mental capacity to observe the occurrence itself and the
capacity of remembering what it is that she is called to testify capacity of remembering what it is that she is called to testify
about, and about, and
iii. a consciousness of the duty to speak the truth. iii. a consciousness of the duty to speak the truth.
For additional discussion, see Section 7.4(C) Competency of Minor Complainant or For additional discussion, see Section 7.4(C) Competency of Minor Complainant or
Witness and Chapter 5, Section 5.12 Taint. Witness and Chapter 5, Section 5.12 Taint.
D. Hypnotically Refreshed Testimony D. Hypnotically Refreshed Testimony
In Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984), the Pennsylvania In Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984), the Pennsylvania
Supreme Court held that where a party seeks to introduce the testimony of a witness, Supreme Court held that where a party seeks to introduce the testimony of a witness,
who has previously been hypnotized, that party must: who has previously been hypnotized, that party must:
(1) advise the court of the existence of the hypnosis; (1) advise the court of the existence of the hypnosis;
(2) show that the testimony to be presented was (2) show that the testimony to be presented was
established and existed prior to the hypnosis; and established and existed prior to the hypnosis; and
(3) demonstrate that the hypnotist was trained in the (3) demonstrate that the hypnotist was trained in the
process and was neutral. process and was neutral.
In turn, the court must instruct the jury that the witness had been hypnotized and that In turn, the court must instruct the jury that the witness had been hypnotized and that
they should receive the testimony with caution. they should receive the testimony with caution.
In Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460 (2004), cert. denied, 546 In Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460 (2004), cert. denied, 546
U.S. 983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005), the Court found all three requirements U.S. 983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005), the Court found all three requirements
from Commonwealth v. Smoyer present in a murder and rape prosecution. Any error in from Commonwealth v. Smoyer present in a murder and rape prosecution. Any error in
trial courts failure to hold a separate hearing respect to the two prosecution witnesses trial courts failure to hold a separate hearing respect to the two prosecution witnesses
who underwent hypnosis was harmless because all requirements for admissibility of who underwent hypnosis was harmless because all requirements for admissibility of
hypnotically-refreshed evidence were satisfied. The sexual nature of assault on one of hypnotically-refreshed evidence were satisfied. The sexual nature of assault on one of
the witnesses, recalled by her only after the hypnosis, was confirmed by independent the witnesses, recalled by her only after the hypnosis, was confirmed by independent
physical evidence and other testimony; therefore, the sexual nature of the attack was physical evidence and other testimony; therefore, the sexual nature of the attack was
independently soundly established. independently soundly established.
7.14 MISTAKE AS TO AGE42 7.14 MISTAKE AS TO AGE42
This statute addresses when an accused may present evidence that he reasonably This statute addresses when an accused may present evidence that he reasonably
believed a child victim was above a critical age established in the definition of the crime. believed a child victim was above a critical age established in the definition of the crime.

3102. Mistake as to age 3102. Mistake as to age
critical age.43 critical age.43
42 For additional discussion, see Chapter 5, Section 5.9(D) Applicability to Sex Offenses Mistake as to Age. 42 For additional discussion, see Chapter 5, Section 5.9(D) Applicability to Sex Offenses Mistake as to Age.
43 18 Pa. Cons. stat. 3102. 43 18 Pa. Cons. stat. 3102.
A. Victim Below Age 14 Years A. Victim Below Age 14 Years
If a criminal statute depends on a child victim being less than 14 years of age, the If a criminal statute depends on a child victim being less than 14 years of age, the
defense is prohibited from claiming, as a defense, that he reasonably believed the child defense is prohibited from claiming, as a defense, that he reasonably believed the child
victim was 14 years or older. 18 Pa. Cons. Stat. 53102; This statue is not unconstitutional. victim was 14 years or older. 18 Pa. Cons. Stat. 53102; This statue is not unconstitutional.
Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (19981), appeal dismissed, 457 Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (19981), appeal dismissed, 457
U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310 (1982). This statute plainly evidenced the U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310 (1982). This statute plainly evidenced the
legislatures intent to make violation thereof a strict liability offense where victim is less legislatures intent to make violation thereof a strict liability offense where victim is less
than fourteen years of age, where the statute specifically indicated that mistake as to age than fourteen years of age, where the statute specifically indicated that mistake as to age
was not a defense. 497 Pa. at 54, 438 A.2d at 966-967. was not a defense. 497 Pa. at 54, 438 A.2d at 966-967.
Commonwealth v. Hall, 418 A.2d 623, 624 (Pa. Super. 1980): even if justified, Commonwealth v. Hall, 418 A.2d 623, 624 (Pa. Super. 1980): even if justified,
defendants mistaken belief as to the victims age was irrelevant and not a defendants mistaken belief as to the victims age was irrelevant and not a
defense to corruption of minors or voluntary deviate sexual intercourse. defense to corruption of minors or voluntary deviate sexual intercourse.
B. Victim Above Age 14 Years B. Victim Above Age 14 Years
In matters involving sexual offenses against children, when criminality depends In matters involving sexual offenses against children, when criminality depends
on the childs being below a specified age but older than fourteen years, it is a defense on the childs being below a specified age but older than fourteen years, it is a defense
for the defendant to prove that he or she reasonably believed the child to be above the for the defendant to prove that he or she reasonably believed the child to be above the
critical age. Because Section 3102 places the initial burden on the accused to prove critical age. Because Section 3102 places the initial burden on the accused to prove
mistake of age, absent such a defense being proffered by the defendant, the prosecution mistake of age, absent such a defense being proffered by the defendant, the prosecution
bears no burden of proof regarding the defendants knowledge or belief as to the child bears no burden of proof regarding the defendants knowledge or belief as to the child
victims age. Commonwealth v. Bohonyi, 900 A.2d 877, 884 (Pa. Super. 2006), appeal victims age. Commonwealth v. Bohonyi, 900 A.2d 877, 884 (Pa. Super. 2006), appeal
Commonwealth v. Fetter, 770 A.2d 762, 768 (Pa. Super. 2001), affirmed, Commonwealth v. Fetter, 770 A.2d 762, 768 (Pa. Super. 2001), affirmed,
570 Pa. 494, 810 A.2d 637 (2002): defendant was convicted of statutory 570 Pa. 494, 810 A.2d 637 (2002): defendant was convicted of statutory
sexual assault, involuntary deviate sexual intercourse; the victim was 15 sexual assault, involuntary deviate sexual intercourse; the victim was 15
at the time of the incident. The trial court properly denied defendants at the time of the incident. The trial court properly denied defendants
attempts to cross examine the victim as to her beliefs as to how old attempts to cross examine the victim as to her beliefs as to how old
she looked: victims beliefs were irrelevant to defendants beliefs and she looked: victims beliefs were irrelevant to defendants beliefs and
knowledge of her actual age. knowledge of her actual age.
7.15 SEXUAL ASSAULT COUNSELOR PRIVILEGE44 7.15 SEXUAL ASSAULT COUNSELOR PRIVILEGE44
The sexual assault counselor victim privilege prevents sexual assault counselors The sexual assault counselor victim privilege prevents sexual assault counselors
from disclosing confidential communications made to them by the victims of sex-related from disclosing confidential communications made to them by the victims of sex-related
crimes. The privilege, which is the equivalent of one involving private psychotherapeutic crimes. The privilege, which is the equivalent of one involving private psychotherapeutic
treatment, is absolute and applies both to oral communications and to records created treatment, is absolute and applies both to oral communications and to records created
during the course of the confidential relationship. Commonwealth v. Gibbs, 642 A.2d during the course of the confidential relationship. Commonwealth v. Gibbs, 642 A.2d
1132, 1134 (Pa. Super. 1994). It provides: 1132, 1134 (Pa. Super. 1994). It provides:
44 Additional discussion of the Sexual Assault Counselor Privilege, in relation to the way it may be invoked regarding the production of 44 Additional discussion of the Sexual Assault Counselor Privilege, in relation to the way it may be invoked regarding the production of
case files, is provided in Chapter 6, Section 6.9(C), Sexual Assault Counselor Privilege. case files, is provided in Chapter 6, Section 6.9(C), Sexual Assault Counselor Privilege.
Subchapter A. Witnesses Generally Subchapter A. Witnesses Generally

Certain Privileges and Immunities Certain Privileges and Immunities
5945.1. Confidential communications with sexual assault 5945.1. Confidential communications with sexual assault
counselors counselors
(a) Definitions.--As used in this section, the following words (a) Definitions.--As used in this section, the following words
and phrases shall have the meanings given to them in this and phrases shall have the meanings given to them in this
subsection: subsection:
Confidential communication. All information, oral or Confidential communication. All information, oral or
written, transmitted between a victim of sexual assault written, transmitted between a victim of sexual assault
and a sexual assault counselor in the course of their and a sexual assault counselor in the course of their
relationship, including, but not limited to, any advice, relationship, including, but not limited to, any advice,
reports, statistical data, memoranda, working papers, reports, statistical data, memoranda, working papers,
records or the like, given or made during that relationship, records or the like, given or made during that relationship,
including matters transmitted between the sexual assault including matters transmitted between the sexual assault
counselor and the victim through the use of an interpreter. counselor and the victim through the use of an interpreter.
Coparticipant. A victim participating in group Coparticipant. A victim participating in group

counseling. counseling.
Interpreter. A person who translates communications Interpreter. A person who translates communications
between a sexual assault counselor and a victim through between a sexual assault counselor and a victim through
the use of sign language, visual, oral or written translation. the use of sign language, visual, oral or written translation.
Rape crisis center. Any office, institution or center Rape crisis center. Any office, institution or center
offering assistance to victims of sexual assault and their offering assistance to victims of sexual assault and their
families through crisis intervention, medical and legal families through crisis intervention, medical and legal
accompaniment and follow-up counseling. accompaniment and follow-up counseling.
Sexual assault counselor. A person who is engaged Sexual assault counselor. A person who is engaged
in any office, institution or center defined as a rape crisis in any office, institution or center defined as a rape crisis
center under this section, who has undergone 40 hours center under this section, who has undergone 40 hours
of sexual assault training and is under the control of a of sexual assault training and is under the control of a
direct services supervisor of a rape crisis center, whose direct services supervisor of a rape crisis center, whose
primary purpose is the rendering of advice, counseling or primary purpose is the rendering of advice, counseling or
assistance to victims of sexual assault. assistance to victims of sexual assault.
Victim. A person who consults a sexual assault Victim. A person who consults a sexual assault
counselor for the purpose of securing advice, counseling counselor for the purpose of securing advice, counseling
or assistance concerning a mental, physical or emotional or assistance concerning a mental, physical or emotional
condition caused or reasonably believed to be caused condition caused or reasonably believed to be caused
by a sexual assault. The term shall also include those by a sexual assault. The term shall also include those
persons who have a significant relationship with a victim persons who have a significant relationship with a victim
of sexual assault and who seek advice, counseling or of sexual assault and who seek advice, counseling or
assistance from a sexual assault counselor concerning assistance from a sexual assault counselor concerning
a mental, physical or emotional condition caused or a mental, physical or emotional condition caused or
reasonably believed to be caused by a sexual assault of reasonably believed to be caused by a sexual assault of
a victim. a victim.
(b) Privilege.-- (b) Privilege.--
(1) No sexual assault counselor or an interpreter (1) No sexual assault counselor or an interpreter
translating the communication between a sexual assault translating the communication between a sexual assault
counselor and a victim may, without the written consent counselor and a victim may, without the written consent
of the victim, disclose the victims confidential oral or of the victim, disclose the victims confidential oral or
written communications to the counselor nor consent to written communications to the counselor nor consent to
be examined in any court or criminal proceeding. be examined in any court or criminal proceeding.
(2) No coparticipant who is present during counseling (2) No coparticipant who is present during counseling
may disclose a victims confidential communication may disclose a victims confidential communication
made during the counseling session nor consent to be made during the counseling session nor consent to be
examined in any civil or criminal proceeding without the examined in any civil or criminal proceeding without the
written consent of the victim.45 written consent of the victim.45
The privilege is absolute and is not outweighed by the defendants state and The privilege is absolute and is not outweighed by the defendants state and
federal constitutional rights to confrontation. Commonwealth v. Wilson / Aultman, federal constitutional rights to confrontation. Commonwealth v. Wilson / Aultman,
529 Pa. 268, 602 A.2d 1290 (1992), cert. denied, 504 U.S. 977, 112 S.Ct. 2952, 119 L.Ed.2d 529 Pa. 268, 602 A.2d 1290 (1992), cert. denied, 504 U.S. 977, 112 S.Ct. 2952, 119 L.Ed.2d
574 (1992). 574 (1992).
Because the statutory privilege is absolute, no court review is required. The Because the statutory privilege is absolute, no court review is required. The
materials are not subject to any access by counsel. The privilege applies regardless of materials are not subject to any access by counsel. The privilege applies regardless of
whether the party seeking disclosure is the prosecution or defense. Commonwealth v. whether the party seeking disclosure is the prosecution or defense. Commonwealth v.
Gibbs, 642 A.2d at 1135. Gibbs, 642 A.2d at 1135.
A. Waiver A. Waiver
The privilege can be waived. If the abuse victim has made confidential records The privilege can be waived. If the abuse victim has made confidential records
available to the Commonwealth, and the prosecution is then accorded access to the available to the Commonwealth, and the prosecution is then accorded access to the
information covered by the privilege, then the statutory privilege must yield to the information covered by the privilege, then the statutory privilege must yield to the
defendants rights of confrontation and compulsory process. B.T. v. Family Services of defendants rights of confrontation and compulsory process. B.T. v. Family Services of
Western Pennsylvania, 705 A.2d 1325, 1337, n.18 (Pa. Super. 1998), affd, 556 Pa. 430, Western Pennsylvania, 705 A.2d 1325, 1337, n.18 (Pa. Super. 1998), affd, 556 Pa. 430,
728 A.2d 953 (1999). 728 A.2d 953 (1999).
Commonwealth v. Davis, 543 Pa. 628, 632, 674 A.2d 214, 216 (1996): Commonwealth v. Davis, 543 Pa. 628, 632, 674 A.2d 214, 216 (1996):
in case in which defendant was charged with deviate sexual intercourse in case in which defendant was charged with deviate sexual intercourse
and corruption of minor, inter alia, child sexual abuse victim and his and corruption of minor, inter alia, child sexual abuse victim and his
family waived any privilege to information contained in family therapy family waived any privilege to information contained in family therapy
counseling records by giving prosecution access to them, and defendant counseling records by giving prosecution access to them, and defendant
45 42 Pa. Cons. stat. 5945.1. 45 42 Pa. Cons. stat. 5945.1.
was entitled to such information in order to confront witnesses at trial was entitled to such information in order to confront witnesses at trial
regardless of appropriateness of his designs as to use at trial of information regardless of appropriateness of his designs as to use at trial of information
hypothetically contained in records. hypothetically contained in records.
No Waiver: Commonwealth v. Askew, 666 A.2d 1062, 1065 (Pa. No Waiver: Commonwealth v. Askew, 666 A.2d 1062, 1065 (Pa.
Super. 1995), appeal denied, 546 Pa. 635, 683 A.2d 876 (1996): Super. 1995), appeal denied, 546 Pa. 635, 683 A.2d 876 (1996):
defendant charged with statutory rape and involuntary deviate sexual defendant charged with statutory rape and involuntary deviate sexual
intercourse, inter alia. Because counselor had a statutory duty to reveal intercourse, inter alia. Because counselor had a statutory duty to reveal
allegation of child abuse to police under the Child Protective Services allegation of child abuse to police under the Child Protective Services
Act, 23 Pa.Cons.Stat.Ann. 6311 et seq., no waiver when counselor Act, 23 Pa.Cons.Stat.Ann. 6311 et seq., no waiver when counselor
informed police of the allegations, nor when minor victims mother informed police of the allegations, nor when minor victims mother
consented to the disclosure. consented to the disclosure.
7.16 911 TAPES AND OTHER AUDIOTAPED EVIDENCE 7.16 911 TAPES AND OTHER AUDIOTAPED EVIDENCE
A. Use of 911 Tapes and Other Audiotapes at Trial A. Use of 911 Tapes and Other Audiotapes at Trial
Audiotaped evidence, such as recordings of 911 calls, often plays a prominent Audiotaped evidence, such as recordings of 911 calls, often plays a prominent
role in sexual violence and domestic violence cases. For purposes of establishing prompt role in sexual violence and domestic violence cases. For purposes of establishing prompt
complaint, as well as the natural history or development of a case, the prosecution will complaint, as well as the natural history or development of a case, the prosecution will
attempt to move into evidence the recordings of emergency call audiotapes.46 attempt to move into evidence the recordings of emergency call audiotapes.46
This type of evidence can play a pivotal role at trial, especially where the victim or This type of evidence can play a pivotal role at trial, especially where the victim or
witness is unavailable at trial or does not wish to cooperate with the prosecution. It adds witness is unavailable at trial or does not wish to cooperate with the prosecution. It adds
credibility to the victims testimony at trial. Basic rules of admissibility and relevancy credibility to the victims testimony at trial. Basic rules of admissibility and relevancy
apply.47 apply.47
1. Natural History or Development of Case 1. Natural History or Development of Case
In Commonwealth v. Robinson, 581 Pa. 154, 227, 864 A.2d 460, 503 In Commonwealth v. Robinson, 581 Pa. 154, 227, 864 A.2d 460, 503
(2004), cert. denied, 581 U.S. 983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005), the trial (2004), cert. denied, 581 U.S. 983, 126 S.Ct. 559, 163 L.Ed.2d 470 (2005), the trial
court permitted tape recordings of the 911 calls made to the Allentown Police court permitted tape recordings of the 911 calls made to the Allentown Police
Department after the discovery of the murder victim. The defendant argued that Department after the discovery of the murder victim. The defendant argued that
the tape was cumulative to other evidence proffered through witnesses present the tape was cumulative to other evidence proffered through witnesses present
at trial. The Supreme Court of Pennsylvania ruled that the tapes did not contain at trial. The Supreme Court of Pennsylvania ruled that the tapes did not contain
any inflammatory or impassioned excerpts, and therefore were not prejudicial any inflammatory or impassioned excerpts, and therefore were not prejudicial
even if somewhat cumulative. even if somewhat cumulative.
In Commonwealth v. Hood, 872 A.2d 175, 181-184 (Pa. Super. 2005), In Commonwealth v. Hood, 872 A.2d 175, 181-184 (Pa. Super. 2005),
appeal denied, 585 Pa. 695, 889 A.2d 88 (2005), the trial court permitted 911 appeal denied, 585 Pa. 695, 889 A.2d 88 (2005), the trial court permitted 911
46 See 3 A.L.R.5th 784, ADMISSIBILITY OF TAPE RECORDING OR TRANSCRIPT OF 911 EMERGENCY TELEPHONE CALL. 46 See 3 A.L.R.5th 784, ADMISSIBILITY OF TAPE RECORDING OR TRANSCRIPT OF 911 EMERGENCY TELEPHONE CALL.
47 Evidence is admissible if it is relevant: that is, if it tends to establish a material fact, makes a fact at issue more or less probable, or 47 Evidence is admissible if it is relevant: that is, if it tends to establish a material fact, makes a fact at issue more or less probable, or
supports a reasonable inference supporting a material fact. Commonwealth v. Wynn, 580 Pa. 713, 850 A.2d 730, 733 (Pa. Super. 2004), supports a reasonable inference supporting a material fact. Commonwealth v. Wynn, 580 Pa. 713, 850 A.2d 730, 733 (Pa. Super. 2004),
appeal denied, 862 A.2d 1255 (2004). appeal denied, 862 A.2d 1255 (2004).
calls of a shooting, two of which identified the defendant as the shooter, into calls of a shooting, two of which identified the defendant as the shooter, into
evidence to establish the initial reports of the incident. evidence to establish the initial reports of the incident.
2. Initial Report of Crime 2. Initial Report of Crime
In Commonwealth v. Cunningham, 805 A.2d 566, 572-573 (Pa. Super. In Commonwealth v. Cunningham, 805 A.2d 566, 572-573 (Pa. Super.
2002), appeal denied, 573 Pa. 663, 820 A.2d 703 (2003), the trial court permitted 2002), appeal denied, 573 Pa. 663, 820 A.2d 703 (2003), the trial court permitted
the jury to hear the tape of a 911 call made by bystanders who were working the jury to hear the tape of a 911 call made by bystanders who were working
nearby and saw the robbery in issue unfolding. The tape was admitted under the nearby and saw the robbery in issue unfolding. The tape was admitted under the
present sense exception to the hearsay rule. present sense exception to the hearsay rule.
B. Issues Regarding Admissibility B. Issues Regarding Admissibility
Four issues must usually be addressed before 911 tapes, as well as other forms of Four issues must usually be addressed before 911 tapes, as well as other forms of
audiotaped evidence, are admissible. These are: audiotaped evidence, are admissible. These are:
(1) Foundation and Authentication; (1) Foundation and Authentication;
(2) Hearsay Considerations; (2) Hearsay Considerations;
(3) Relevancy; and (3) Relevancy; and
(4) Prejudice. (4) Prejudice.
1. Foundation and Authentication 1. Foundation and Authentication
Pennsylvania Rule of Evidence 901(a) is identical to Federal Rule of Pennsylvania Rule of Evidence 901(a) is identical to Federal Rule of
Evidence 901(a) and consistent with Pennsylvania case law. Rule 901(a) provides Evidence 901(a) and consistent with Pennsylvania case law. Rule 901(a) provides
that [t]he requirement of authenticating or identifying an item of evidence, the that [t]he requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the item is proponent must produce evidence sufficient to support a finding that the item is
what the proponent claims it is. Section (b) of Rule 901 provides examples of the what the proponent claims it is. Section (b) of Rule 901 provides examples of the
ways authentication may be accomplished. Two of the examples are applicable ways authentication may be accomplished. Two of the examples are applicable
to these types of audiotapes: to these types of audiotapes:
Rule 901. Authenticating or Identifying Evidence Rule 901. Authenticating or Identifying Evidence
... ...
(b) Examples. The following are examples only-- (b) Examples. The following are examples only--
not a complete list--of evidence that satisfies the not a complete list--of evidence that satisfies the
requirement: requirement:
... ...
(5) Opinion About a Voice. An opinion identifying a (5) Opinion About a Voice. An opinion identifying a
persons voice--whether heard firsthand or through persons voice--whether heard firsthand or through
mechanical or electronic transmission or recording- mechanical or electronic transmission or recording-
-based on hearing the voice at any time under -based on hearing the voice at any time under
circumstances that connect it with the alleged circumstances that connect it with the alleged
speaker. speaker.
(6) Evidence About a Telephone Conversation. For (6) Evidence About a Telephone Conversation. For
a telephone conversation, evidence that a call was a telephone conversation, evidence that a call was
made to the number assigned at the time to: made to the number assigned at the time to:
(A) a particular person, if circumstances, including (A) a particular person, if circumstances, including
self-identification, show that the person answering self-identification, show that the person answering
was the one called; or was the one called; or
(B) a particular business, if the call was made (B) a particular business, if the call was made
to a business and the call related to business to a business and the call related to business
reasonably transacted over the telephone. reasonably transacted over the telephone.
In addition to being relevant, demonstrative evidence must also be In addition to being relevant, demonstrative evidence must also be
properly authenticated by evidence sufficient to show that it is a fair and accurate properly authenticated by evidence sufficient to show that it is a fair and accurate
representation of what it is purported to depict. Commonwealth v. Reid, 571 Pa. representation of what it is purported to depict. Commonwealth v. Reid, 571 Pa.
1, 38, 811 A.2d 530, 552 (2002), cert. denied, 540 U.S. 850 (2003). Demonstrative 1, 38, 811 A.2d 530, 552 (2002), cert. denied, 540 U.S. 850 (2003). Demonstrative
evidence may be authenticated by testimony from a witness who has knowledge evidence may be authenticated by testimony from a witness who has knowledge
of what the evidence is proclaimed to be. Pa.R.Evid. 901(b)(1). Id. of what the evidence is proclaimed to be. Pa.R.Evid. 901(b)(1). Id.
2. Hearsay Considerations 2. Hearsay Considerations
When an out-of-court statement is offered for a purpose other than When an out-of-court statement is offered for a purpose other than
proving the truth of its contents, it is not hearsay and is not excludable under proving the truth of its contents, it is not hearsay and is not excludable under
the hearsay rule. Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. the hearsay rule. Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super.
2002), appeal denied, 573 Pa. 663, 820 A.2d 703 (2003). Therefore, 911 calls 2002), appeal denied, 573 Pa. 663, 820 A.2d 703 (2003). Therefore, 911 calls
which are not used to prove the truth of the matter asserted are not barred by which are not used to prove the truth of the matter asserted are not barred by
the hearsay rule. the hearsay rule.
In cases where 911 calls, or other audiotaped evidence, fall within the In cases where 911 calls, or other audiotaped evidence, fall within the
definition of hearsay, trial courts have admitted the evidence under the excited definition of hearsay, trial courts have admitted the evidence under the excited
utterance and present sense impression exceptions, as well as other exceptions. utterance and present sense impression exceptions, as well as other exceptions.
3. Constitutional Right of Confrontation 3. Constitutional Right of Confrontation
An additional consideration is the prohibition against testimonial An additional consideration is the prohibition against testimonial
statements from Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 statements from Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004). Crawford holds that out-of-court statements by witnesses L.Ed.2d 177 (2004). Crawford holds that out-of-court statements by witnesses
that are testimonial are barred under the confrontation clause, notwithstanding that are testimonial are barred under the confrontation clause, notwithstanding
their designation as hearsay exceptions, unless the witnesses are unavailable and their designation as hearsay exceptions, unless the witnesses are unavailable and
defendants had prior opportunity to cross-examine the witnesses. There are a defendants had prior opportunity to cross-examine the witnesses. There are a
number of cases that find a distinction between non-testimonial statements and number of cases that find a distinction between non-testimonial statements and
statements made in contemplation of litigation: statements made in contemplation of litigation:
A statement is more likely to have been made with the A statement is more likely to have been made with the
expectation that it would be used as evidence if it was expectation that it would be used as evidence if it was
given in response to questioning by a government official given in response to questioning by a government official
than it would if it had been volunteered. Emergency 911 than it would if it had been volunteered. Emergency 911
calls offer a good illustration of this point. Many courts calls offer a good illustration of this point. Many courts
have concluded that a hearsay statement made in a 911 have concluded that a hearsay statement made in a 911
call is not testimonial, because the statement is not call is not testimonial, because the statement is not
made in response to police questioning, and because the made in response to police questioning, and because the
purpose of the call is to obtain assistance, not to make a purpose of the call is to obtain assistance, not to make a
record against someone. record against someone.
Commonwealth v. Gray, 867 A.2d 560, 576 (Pa. Super. 2005), appeal denied, Commonwealth v. Gray, 867 A.2d 560, 576 (Pa. Super. 2005), appeal denied,
583 Pa. 694, 879 A.2d 781 (2005).48 In Gray, the Superior Court concluded 583 Pa. 694, 879 A.2d 781 (2005).48 In Gray, the Superior Court concluded
that the witnesss excited utterances to police at the scene of crime did not fall that the witnesss excited utterances to police at the scene of crime did not fall
under extrajudicial statements contained in formalized testimonial materials under extrajudicial statements contained in formalized testimonial materials
classification of testimonial statements articulated in Crawford. classification of testimonial statements articulated in Crawford.
The United States District Court for the Eastern District of Pennsylvania, The United States District Court for the Eastern District of Pennsylvania,
in an unreported case, found that typical 911 calls are not considered testimonial in an unreported case, found that typical 911 calls are not considered testimonial
statements as to trigger Confrontation Clause protections: statements as to trigger Confrontation Clause protections:
Therefore, statements describing an ongoing emergency, recorded Therefore, statements describing an ongoing emergency, recorded
during the course of a 911 call are generally not considered during the course of a 911 call are generally not considered
testimonial. Id. The non testimonial statements in Davis can be testimonial. Id. The non testimonial statements in Davis can be
distinguished from the testimonial statements in Crawford in that distinguished from the testimonial statements in Crawford in that
the statements were made as the event was actually happening, the statements were made as the event was actually happening,
not after the fact; that there was an ongoing emergency and the not after the fact; that there was an ongoing emergency and the
elicited statements were necessary to resolve that emergency; elicited statements were necessary to resolve that emergency;
and that the statements were not formal. and that the statements were not formal.
Hood v. Folino, 2012 WL 760795 (E.D.Pa. 2012). Hood v. Folino, 2012 WL 760795 (E.D.Pa. 2012).
(a) Excited Utterances (a) Excited Utterances
In determining whether an audiotaped statement is admissible as In determining whether an audiotaped statement is admissible as
an excited utterance, the taped statement must relate to a startling event an excited utterance, the taped statement must relate to a startling event
or condition made while the declarant was under the stress of excitement or condition made while the declarant was under the stress of excitement
caused by the event or condition. The fact that a statement was not made caused by the event or condition. The fact that a statement was not made
immediately after a startling event is not dispositive of its admissibility as an immediately after a startling event is not dispositive of its admissibility as an
excited utterance. Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super. excited utterance. Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super.
2003). The crucial question, regardless of time lapse, is whether, at the time 2003). The crucial question, regardless of time lapse, is whether, at the time
the statement is made, the nervous excitement continues to dominate while the statement is made, the nervous excitement continues to dominate while
48 In Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004), the victim called 911 to report that a prowler had entered her home. On the following 48 In Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004), the victim called 911 to report that a prowler had entered her home. On the following
night, the victim was murdered. At the defendants trial, the trial court admitted the 911 call, as excited utterances, and Leavitt was night, the victim was murdered. At the defendants trial, the trial court admitted the 911 call, as excited utterances, and Leavitt was
convicted. On appeal, the Court concluded that the victims statements were properly introduced as excited utterances and that the convicted. On appeal, the Court concluded that the victims statements were properly introduced as excited utterances and that the
statements did not qualify as testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). statements did not qualify as testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
the reflective process remains in abeyance. Commonwealth v. Carmody, 799 the reflective process remains in abeyance. Commonwealth v. Carmody, 799
The excited utterance (1) need not describe the startling event, it The excited utterance (1) need not describe the startling event, it
need only relate to it, and (2) need not be made contemporaneously with, or need only relate to it, and (2) need not be made contemporaneously with, or
immediately after, the startling event.49 immediately after, the startling event.49
Pa.R.E. 803(2) provides that an excited utterance is a statement Pa.R.E. 803(2) provides that an excited utterance is a statement
relating to a startling event or condition, made while the declarant was under relating to a startling event or condition, made while the declarant was under
the stress of excitement that it caused.50 the stress of excitement that it caused.50
Other Corroborating Evidence: with respect to excited utterances Other Corroborating Evidence: with respect to excited utterances
by unidentified bystanders, i.e., anonymous 911 calls, the law in by unidentified bystanders, i.e., anonymous 911 calls, the law in
Pennsylvania has evolved to add an additional proof requirement Pennsylvania has evolved to add an additional proof requirement
for admissibility. In order to assure that an unidentified bystander for admissibility. In order to assure that an unidentified bystander
actually witnessed the event discussed on the 911 call, and which actually witnessed the event discussed on the 911 call, and which
is relevant at the time of trial, the Pennsylvania Supreme Court has is relevant at the time of trial, the Pennsylvania Supreme Court has
held that that it is incumbent upon the party seeking the admission held that that it is incumbent upon the party seeking the admission
of the out-of-court statement to demonstrate by the use of other of the out-of-court statement to demonstrate by the use of other
corroborating evidence that the declarant actually viewed the event corroborating evidence that the declarant actually viewed the event
of which he speaks. Commonwealth v. Hood, 872 A.2d 175, 181 (Pa. of which he speaks. Commonwealth v. Hood, 872 A.2d 175, 181 (Pa.
Super. 2005), appeal denied, 585 Pa. 695, 889 A.2d 88 (2005) (citing Super. 2005), appeal denied, 585 Pa. 695, 889 A.2d 88 (2005) (citing
Carney v. Pennsylvania Railroad Co., 428 Pa. 489, 496, 240 A.2d 71, Carney v. Pennsylvania Railroad Co., 428 Pa. 489, 496, 240 A.2d 71,
75 (1968)). 75 (1968)).
(b) Present Sense Impressions (b) Present Sense Impressions
The present sense impression exception, regardless of the availability The present sense impression exception, regardless of the availability
of the declarant to testify at trial, allows the admission of a 911 call, or other of the declarant to testify at trial, allows the admission of a 911 call, or other
audiotaped statement, under certain conditions. Pa.R.E. 803(1) provides that audiotaped statement, under certain conditions. Pa.R.E. 803(1) provides that
a present sense impression is a statement describing or explaining an event a present sense impression is a statement describing or explaining an event
or condition, made while or immediately after the declarant perceived it.51 or condition, made while or immediately after the declarant perceived it.51
The observation must be made at the time of the event or shortly The observation must be made at the time of the event or shortly
thereafter, making it unlikely that the declarant had the opportunity to form thereafter, making it unlikely that the declarant had the opportunity to form
an intent to misstate his observation. Consequently, the trustworthiness of an intent to misstate his observation. Consequently, the trustworthiness of
the statement depends upon the timing of the declaration. Commonwealth the statement depends upon the timing of the declaration. Commonwealth
v. Gray, 867 A.2d 560, 570 (Pa. Super. 2005), appeal denied, 583 Pa. 694, 879 v. Gray, 867 A.2d 560, 570 (Pa. Super. 2005), appeal denied, 583 Pa. 694, 879
A.2d 781 (2005). In addition, the present sense impression does not require A.2d 781 (2005). In addition, the present sense impression does not require
that the comments be made to another person also present at the scene, but that the comments be made to another person also present at the scene, but
may be made over the telephone. Commonwealth v. Cunningham, 805 A.2d may be made over the telephone. Commonwealth v. Cunningham, 805 A.2d
49 Commonwealth v. Hood, 872 A.2d 175, 181 (Pa. Super. 2005), appeal denied, 585 Pa. 695, 889 A.2d 88 (2005). 49 Commonwealth v. Hood, 872 A.2d 175, 181 (Pa. Super. 2005), appeal denied, 585 Pa. 695, 889 A.2d 88 (2005).
50 For additional discussion on excited utterances, see Section 7.10(C)(2). 50 For additional discussion on excited utterances, see Section 7.10(C)(2).
51 For additional discussion on present sense impressions, see Section 7.10(C)(1). 51 For additional discussion on present sense impressions, see Section 7.10(C)(1).

Other Corroborating Evidence: with respect to 911 calls by Other Corroborating Evidence: with respect to 911 calls by
unidentified bystanders, admitted under the present sense impression unidentified bystanders, admitted under the present sense impression
exception, the Superior Court in Commonwealth v. Hood, 872 A.2d 175, exception, the Superior Court in Commonwealth v. Hood, 872 A.2d 175,
184 (Pa. Super. 2005), appeal denied, 585 Pa. 695, 889 A.2d 88 (2005), 184 (Pa. Super. 2005), appeal denied, 585 Pa. 695, 889 A.2d 88 (2005),
held in dicta the same additional proof requirement for admissibility held in dicta the same additional proof requirement for admissibility
as excited utterances. In order to assure that an unidentified bystander as excited utterances. In order to assure that an unidentified bystander
actually witnessed the event discussed on the 911 call, and which is actually witnessed the event discussed on the 911 call, and which is
relevant at the time of trial, it is incumbent upon the party seeking the relevant at the time of trial, it is incumbent upon the party seeking the
admission of the out-of-court statement to demonstrate by the use of admission of the out-of-court statement to demonstrate by the use of
other corroborating evidence that the declarant actually viewed the other corroborating evidence that the declarant actually viewed the
event of which he speaks. See Carney v. Pennsylvania Railroad Co., event of which he speaks. See Carney v. Pennsylvania Railroad Co.,
428 Pa. 489, 496, 240 A.2d 71, 75 (1968). 428 Pa. 489, 496, 240 A.2d 71, 75 (1968).
4. Relevancy 4. Relevancy
In Commonwealth v. Witman, 750 A.2d 327 (Pa. Super. 2000), appeal In Commonwealth v. Witman, 750 A.2d 327 (Pa. Super. 2000), appeal
denied, 564 Pa. 138, 764 A.2d 1053 (2000), cert. denied, 534 U.S. 815, 122 S.Ct. 42, denied, 564 Pa. 138, 764 A.2d 1053 (2000), cert. denied, 534 U.S. 815, 122 S.Ct. 42,
151 L.Ed.2d 15 (2001), the court found 911 tapes to be relevant in a suppression 151 L.Ed.2d 15 (2001), the court found 911 tapes to be relevant in a suppression
hearing on a number of grounds: hearing on a number of grounds:
This evidence forms the very foundation for the relationship This evidence forms the very foundation for the relationship
appellee established with police. Appellee maintains no appellee established with police. Appellee maintains no
expectation of privacy with respect to his statements expectation of privacy with respect to his statements
and, furthermore, careful review of the 911 tape fails to and, furthermore, careful review of the 911 tape fails to
reveal unfair prejudice to the defense. To the contrary, the reveal unfair prejudice to the defense. To the contrary, the
statements made by appellee when he called 911 appear to statements made by appellee when he called 911 appear to
be wholly consistent with all of his subsequent statements be wholly consistent with all of his subsequent statements
to the police. It may also be necessary during trial, as a to the police. It may also be necessary during trial, as a
truth-determining process, to test prior consistent or truth-determining process, to test prior consistent or
inconsistent statements on behalf of either the appellee inconsistent statements on behalf of either the appellee
or the Commonwealth. It is the best evidence of what or the Commonwealth. It is the best evidence of what
transpired in the opening minutes of this event and as such transpired in the opening minutes of this event and as such
may be required as evidence of the occurrence pursuant may be required as evidence of the occurrence pursuant
to Pa.R.Evid. 1002, Requirement of Original. At worst, the to Pa.R.Evid. 1002, Requirement of Original. At worst, the
911 recording and transcript would be cumulative and 911 recording and transcript would be cumulative and
corroborative evidence; however, this evidence, more than corroborative evidence; however, this evidence, more than
any other, demonstrates what transpired in the opening any other, demonstrates what transpired in the opening
moments of police involvement initiated by appellee and moments of police involvement initiated by appellee and
goes to appellees state of mind. In his Opinion, the trial court goes to appellees state of mind. In his Opinion, the trial court
acknowledged that police involvement originated with the acknowledged that police involvement originated with the
911 call and the contents of that call relayed to police are 911 call and the contents of that call relayed to police are
inseparable from their conduct in reaching the house and inseparable from their conduct in reaching the house and
their treatment of the appellee. Based upon the foregoing, their treatment of the appellee. Based upon the foregoing,
we find erroneous the suppression courts exclusion of the we find erroneous the suppression courts exclusion of the
911 recording and transcript. While the Commonwealth did 911 recording and transcript. While the Commonwealth did

not object to the ruling by the trial court on this issue, our not object to the ruling by the trial court on this issue, our
ruling may avoid the necessity of an appeal on admissibility ruling may avoid the necessity of an appeal on admissibility
of the tapes or transcripts should the matter arise at trial. of the tapes or transcripts should the matter arise at trial.
Commonwealth v. Witman, 750 A.2d at 336. Commonwealth v. Witman, 750 A.2d at 336.
5. Prejudice 5. Prejudice
To test whether demonstrative evidence should be admitted, the trial To test whether demonstrative evidence should be admitted, the trial
court should conduct a two part test. court should conduct a two part test.
First, the court determines whether the evidence is inflammatory in First, the court determines whether the evidence is inflammatory in
nature. nature.
If the evidence is inflammatory, the court then decides whether the If the evidence is inflammatory, the court then decides whether the
evidence is of essential evidentiary value such that its need clearly outweighs evidence is of essential evidentiary value such that its need clearly outweighs
the likelihood of inflaming the minds and passions of the jurors. Commonwealth the likelihood of inflaming the minds and passions of the jurors. Commonwealth
v. Conway, 534 A.2d 541, 544 n.3 (Pa. Super. 1987), appeal denied, 520 Pa. 581, v. Conway, 534 A.2d 541, 544 n.3 (Pa. Super. 1987), appeal denied, 520 Pa. 581,
549 A.2d 914 (1988); Commonwealth v. Groff, 514 A.2d 1382, 1384 (Pa. Super. 549 A.2d 914 (1988); Commonwealth v. Groff, 514 A.2d 1382, 1384 (Pa. Super.
Harmless Error: It was error to admit into evidence tape recording Harmless Error: It was error to admit into evidence tape recording
of 911 telephone call made during the course of the murder because of 911 telephone call made during the course of the murder because
victims screams would inflame the jury, however, because of victims screams would inflame the jury, however, because of
overwhelming evidence of guilt, determined to be harmless error. overwhelming evidence of guilt, determined to be harmless error.
Commonwealth v. Groff, 514 A.2d 1382, 1384-1385 (Pa. Super. 1986), Commonwealth v. Groff, 514 A.2d 1382, 1384-1385 (Pa. Super. 1986),
Harmless Error: During 911 call by victim on day she was murdered, Harmless Error: During 911 call by victim on day she was murdered,
victim told the 911 operator that the defendant had just called her and victim told the 911 operator that the defendant had just called her and
threatened her life. The Commonwealth asserted that the 911 call was threatened her life. The Commonwealth asserted that the 911 call was
properly admitted pursuant to the excited utterance exception to the properly admitted pursuant to the excited utterance exception to the
hearsay rule. The Supreme Court did not reach the issue of the hearsay hearsay rule. The Supreme Court did not reach the issue of the hearsay
objection because, even if the trial court erred in its admission of the objection because, even if the trial court erred in its admission of the
911 call, it constituted harmless error. The statement regarding [the 911 call, it constituted harmless error. The statement regarding [the
defendants] threat made during the 911 call was merely cumulative defendants] threat made during the 911 call was merely cumulative
of other properly admitted evidence. Moreover, given the other of other properly admitted evidence. Moreover, given the other
overwhelming evidence of [the defendants] guilt in the record, we do overwhelming evidence of [the defendants] guilt in the record, we do
not find that [the defendant] was prejudiced by the courts admission not find that [the defendant] was prejudiced by the courts admission
of this evidence. Commonwealth v. Stallworth, 566 Pa. 349, 368, 781 of this evidence. Commonwealth v. Stallworth, 566 Pa. 349, 368, 781
A.2d 110, 120-121 (2001). A.2d 110, 120-121 (2001).

7.17 EVIDENCE OF SEXUALLY EXPLICIT MATERIALS 7.17 EVIDENCE OF SEXUALLY EXPLICIT MATERIALS
It is not uncommon for the prosecution, in a sexual violence case, to attempt to It is not uncommon for the prosecution, in a sexual violence case, to attempt to
admit into evidence items seized from a search of the defendants residence, especially admit into evidence items seized from a search of the defendants residence, especially
sexually explicit materials, including pornography. Arguments on behalf of the sexually explicit materials, including pornography. Arguments on behalf of the
prosecution in support of admissibility include: prosecution in support of admissibility include:
the materials show abnormal sexual behavior; the materials show abnormal sexual behavior;
the defendants sexual desires were out of the ordinary; the defendants sexual desires were out of the ordinary;
the defendants sexual preferences were aberrant.52 the defendants sexual preferences were aberrant.52
However, caution must be exercised before materials of a sexual nature are admitted: However, caution must be exercised before materials of a sexual nature are admitted:
Admittedly, the drawing of lines with respect to the admission Admittedly, the drawing of lines with respect to the admission
of sexually explicit materials is difficult. While on one hand of sexually explicit materials is difficult. While on one hand
recognizing that evidence of a sexual nature may have probative recognizing that evidence of a sexual nature may have probative
value in a sexual assault case, we cannot on the other hand confer value in a sexual assault case, we cannot on the other hand confer
blanket probative value on all sexual materials in all cases. In blanket probative value on all sexual materials in all cases. In
some instances, materials found in an accuseds possession some instances, materials found in an accuseds possession
might very well be probative of an issue in a case. For instance, if might very well be probative of an issue in a case. For instance, if
the publication sought to be admitted here had depicted women the publication sought to be admitted here had depicted women
being tied up and subjected to anal intercourse against their will, being tied up and subjected to anal intercourse against their will,
it may have been probative of whether appellant forced his victim it may have been probative of whether appellant forced his victim
to commit those same acts. Further, if there had been allegations to commit those same acts. Further, if there had been allegations
that appellant had shown the Magazine to the victim or in any that appellant had shown the Magazine to the victim or in any
way used the magazine during his attack on her, the probative way used the magazine during his attack on her, the probative
value of the evidence would be more obvious. However, as the value of the evidence would be more obvious. However, as the
prosecutor herself commented in this case, ones mere possession prosecutor herself commented in this case, ones mere possession
of a pornographic magazine does not tend to establish guilt in the of a pornographic magazine does not tend to establish guilt in the
case of rape. case of rape.
Commonwealth v. Impellizzeri, 661 A.2d 422, 431 (Pa. Super. 1995), appeal denied, Commonwealth v. Impellizzeri, 661 A.2d 422, 431 (Pa. Super. 1995), appeal denied,
543 Pa. 725, 673 A.2d 332 (1996). 543 Pa. 725, 673 A.2d 332 (1996).
The prosecution will argue that the materials show abnormal sexual behavior. In The prosecution will argue that the materials show abnormal sexual behavior. In
Commonwealth v. Moore, 567 A.2d 701 (Pa. Super. 1989), appeal denied, 525 Pa. 597, Commonwealth v. Moore, 567 A.2d 701 (Pa. Super. 1989), appeal denied, 525 Pa. 597,
575 A.2d 563 (1990), the appellant was convicted of rape, involuntary deviate sexual 575 A.2d 563 (1990), the appellant was convicted of rape, involuntary deviate sexual
intercourse and related offenses in connection with his assault on an eleven year old girl intercourse and related offenses in connection with his assault on an eleven year old girl
on her way to school. At the time of the crime, the perpetrator carried a blue gym bag on her way to school. At the time of the crime, the perpetrator carried a blue gym bag
and a jar of Vaseline. Also, the victim found a pornographic magazine at the scene of the and a jar of Vaseline. Also, the victim found a pornographic magazine at the scene of the
assault. When arrested several months later, the appellant had in his possession a grey assault. When arrested several months later, the appellant had in his possession a grey
gym bag, a jar of Vaseline and a pornographic magazine, all of which were admitted at gym bag, a jar of Vaseline and a pornographic magazine, all of which were admitted at
trial. The Superior Court ruled in Moore that the items admitted were probative because trial. The Superior Court ruled in Moore that the items admitted were probative because
they tended to establish the identity of the attacker. Id. at 706. they tended to establish the identity of the attacker. Id. at 706.
52 Commonwealth v. Impellizzeri, 661 A.2d 422, 430 (Pa. Super. 1995), appeal denied, 543 Pa. 725, 673 A.2d 332 (1996). 52 Commonwealth v. Impellizzeri, 661 A.2d 422, 430 (Pa. Super. 1995), appeal denied, 543 Pa. 725, 673 A.2d 332 (1996).

A. Basic Rules of Admissibility A. Basic Rules of Admissibility
Admissibility is based upon a determination of relevancy, and relevancy is Admissibility is based upon a determination of relevancy, and relevancy is
determined by examining whether the evidence sought to be introduced tends to determined by examining whether the evidence sought to be introduced tends to
establish a material fact or make a fact at issue more or less probable. Commonwealth establish a material fact or make a fact at issue more or less probable. Commonwealth
v. Griffin, 684 A.2d 589, 594 (Pa. Super. 1996). Evidence that is relevant, i.e., probative of v. Griffin, 684 A.2d 589, 594 (Pa. Super. 1996). Evidence that is relevant, i.e., probative of
a material fact, may still be excluded if its probative value is outweighed by its prejudicial a material fact, may still be excluded if its probative value is outweighed by its prejudicial
effect. Commonwealth v. Dillon, 863 A.2d 597, 601 (Pa. Super. 2004) (en banc), appeal effect. Commonwealth v. Dillon, 863 A.2d 597, 601 (Pa. Super. 2004) (en banc), appeal
granted, 584 Pa. 691, 882 A.2d 477 (2005). However, since all Commonwealth evidence granted, 584 Pa. 691, 882 A.2d 477 (2005). However, since all Commonwealth evidence
in a criminal case will be prejudicial to the defendant, exclusion of otherwise relevant in a criminal case will be prejudicial to the defendant, exclusion of otherwise relevant
evidence will only be necessary where the evidence is so prejudicial that it may inflame evidence will only be necessary where the evidence is so prejudicial that it may inflame
the jury to make a decision based upon something other than the legal propositions the jury to make a decision based upon something other than the legal propositions
relevant to the case. Commonwealth v. McMaster, 666 A.2d 724, 729 (Pa. Super. 1995) relevant to the case. Commonwealth v. McMaster, 666 A.2d 724, 729 (Pa. Super. 1995)
(internal quotations omitted). (internal quotations omitted).
It is well settled in Pennsylvania that a trial court is not required to sanitize the It is well settled in Pennsylvania that a trial court is not required to sanitize the
trial to eliminate all unpleasant facts from the jurys consideration where those facts form trial to eliminate all unpleasant facts from the jurys consideration where those facts form
part of the history and natural development of the events and offenses with which the part of the history and natural development of the events and offenses with which the
defendant is charged. Commonwealth v. Peer, 684 A.2d 1077, 1083 (Pa. Super. 1996). defendant is charged. Commonwealth v. Peer, 684 A.2d 1077, 1083 (Pa. Super. 1996).
Unless otherwise barred by a legal impediment, the trial judge enjoys broad discretion Unless otherwise barred by a legal impediment, the trial judge enjoys broad discretion
in admitting or excluding evidence, and appellate review is limited: [t]he admission of in admitting or excluding evidence, and appellate review is limited: [t]he admission of
evidence is a matter vested in the sound discretion of the trial court, whose decision evidence is a matter vested in the sound discretion of the trial court, whose decision
thereon can only be reversed by this Court upon a showing of an abuse of discretion. thereon can only be reversed by this Court upon a showing of an abuse of discretion.
Commonwealth v. Travaglia, 792 A.2d 1261, 1263 (Pa.Super. 2002), appeal denied, 572 Commonwealth v. Travaglia, 792 A.2d 1261, 1263 (Pa.Super. 2002), appeal denied, 572
Pa. 733, 815 A.2d 633 (2002), cert. denied, 540 U.S. 828 (2003). Pa. 733, 815 A.2d 633 (2002), cert. denied, 540 U.S. 828 (2003).
B. Sexually Explicit Materials - Probative Value B. Sexually Explicit Materials - Probative Value
Although mere possession of pornographic materials does not tend to establish Although mere possession of pornographic materials does not tend to establish
guilt in a sexual violence case, the possession of such materials by the defendant will guilt in a sexual violence case, the possession of such materials by the defendant will
be admissible if probative of an issue in the case. In Commonwealth v. Impellizzeri, be admissible if probative of an issue in the case. In Commonwealth v. Impellizzeri,
661 A.2d 422 (Pa. Super. 1995), appeal denied, 543 Pa. 725, 673 A.2d 332 (Pa. 1996), 661 A.2d 422 (Pa. Super. 1995), appeal denied, 543 Pa. 725, 673 A.2d 332 (Pa. 1996),
the Superior Court held that mere possession of sexually explicit materials does not the Superior Court held that mere possession of sexually explicit materials does not
tend to establish guilt and, therefore, does not require admission. 661 A.2d at 431. In tend to establish guilt and, therefore, does not require admission. 661 A.2d at 431. In
Impellizzeri, the magazine at issue, which was seized at the defendants home pursuant Impellizzeri, the magazine at issue, which was seized at the defendants home pursuant
to a search warrant, dealt with anal sex; although the victim had been subjected to anal to a search warrant, dealt with anal sex; although the victim had been subjected to anal
intercourse, as well as vaginal and oral sex, the Superior Court held that there was no intercourse, as well as vaginal and oral sex, the Superior Court held that there was no
evidence that the magazine had been used in any way in the sexual attack or even shown evidence that the magazine had been used in any way in the sexual attack or even shown
to the victim. The Superior Court held that it was error to admit the magazine, which had to the victim. The Superior Court held that it was error to admit the magazine, which had
little probative value on whether the sexual activity was forced or consensual under the little probative value on whether the sexual activity was forced or consensual under the
circumstances presented 661 A.2d at 431. circumstances presented 661 A.2d at 431.
In Commonwealth v. Palmer, 700 A.2d 988 (Pa. Super. 1997), appeal denied, In Commonwealth v. Palmer, 700 A.2d 988 (Pa. Super. 1997), appeal denied,
552 Pa. 695, 716 A.2d 1248 (1998), overruled on other grounds, Commonwealth v. 552 Pa. 695, 716 A.2d 1248 (1998), overruled on other grounds, Commonwealth v.
Archer, 722 A.2d 203 (Pa. Super. 1998), explicit photographs and pornographic films Archer, 722 A.2d 203 (Pa. Super. 1998), explicit photographs and pornographic films

not only served to corroborate the victims claim that the pictures and films were not only served to corroborate the victims claim that the pictures and films were
shown to the minor victim, but were also probative of a fact in controversy. In Palmer, shown to the minor victim, but were also probative of a fact in controversy. In Palmer,
sexually explicit photographs of the minor victim were found at the defendants home, sexually explicit photographs of the minor victim were found at the defendants home,
along with pornographic films and explicit photographs of another girl similar to the along with pornographic films and explicit photographs of another girl similar to the
photographs of the victim. At trial, the minor victim testified that the defendant had photographs of the victim. At trial, the minor victim testified that the defendant had
watched the pornographic movies with her; therefore, the admission of the films tended watched the pornographic movies with her; therefore, the admission of the films tended
to corroborate the testimony of the victim. The explicit photographs of the other to corroborate the testimony of the victim. The explicit photographs of the other
girl, taken under similar circumstances, tended to show that more likely than not the girl, taken under similar circumstances, tended to show that more likely than not the
defendant had taken the pictures of the minor victim. 700 A.2d at 993. defendant had taken the pictures of the minor victim. 700 A.2d at 993.
C. Sexually Explicit Materials Lessening Prejudicial Impact C. Sexually Explicit Materials Lessening Prejudicial Impact
In Commonwealth v. Palmer, 700 A.2d 988, 993 (Pa. Super. 1997), appeal In Commonwealth v. Palmer, 700 A.2d 988, 993 (Pa. Super. 1997), appeal
denied, 552 Pa. 695, 716 A.2d 1248 (1998), overruled on other grounds, Commonwealth denied, 552 Pa. 695, 716 A.2d 1248 (1998), overruled on other grounds, Commonwealth
v. Archer, 722 A.2d 203 (Pa. Super. 1998) (en banc), the probative value of sexually v. Archer, 722 A.2d 203 (Pa. Super. 1998) (en banc), the probative value of sexually
explicit materials in a prosecution for rape, involuntary deviate sexual intercourse, explicit materials in a prosecution for rape, involuntary deviate sexual intercourse,
and corrupting morals of a minor was not outweighed by the prejudicial impact of and corrupting morals of a minor was not outweighed by the prejudicial impact of
the materials; the trial judge deliberately delimited the physical evidence admitted or the materials; the trial judge deliberately delimited the physical evidence admitted or
submitted to jury, which was permitted to see only external packaging of individual submitted to jury, which was permitted to see only external packaging of individual
videos to confirm that they were adult videos, and which did not view six photos of a videos to confirm that they were adult videos, and which did not view six photos of a
young woman that were identified by the minor victim. young woman that were identified by the minor victim.
D. Sexually Explicit Materials Harmless Error D. Sexually Explicit Materials Harmless Error
In Commonwealth v. Bishop, 936 A.2d 1136 (Pa. Super. 2007), appeal denied, 597 In Commonwealth v. Bishop, 936 A.2d 1136 (Pa. Super. 2007), appeal denied, 597
Pa. 710, 951 A.2d 1159 (2007), the defendant was convicted of rape, involuntary sexual Pa. 710, 951 A.2d 1159 (2007), the defendant was convicted of rape, involuntary sexual
intercourse and related charges. The defendant had assault the victim in a restaurants intercourse and related charges. The defendant had assault the victim in a restaurants
restroom; the victim was eventually rescued by her cousin who was waiting for her. The restroom; the victim was eventually rescued by her cousin who was waiting for her. The
defendant was caught while the assault was taking place. Although the Commonwealth defendant was caught while the assault was taking place. Although the Commonwealth
witness conceded at trial that there was no link between viewing pornography and witness conceded at trial that there was no link between viewing pornography and
committing violent crimes, the trial court admitted, over objection, nine copies of the committing violent crimes, the trial court admitted, over objection, nine copies of the
magazine Barely Legal which were found by the police in the defendants truck. The magazine Barely Legal which were found by the police in the defendants truck. The
Superior Court found the admission of the magazines to be an abuse of discretion; Superior Court found the admission of the magazines to be an abuse of discretion;
however, the error was harmless in light of the overwhelming evidence against the however, the error was harmless in light of the overwhelming evidence against the
defendant. The Superior Court stated: defendant. The Superior Court stated:
Harmless error is established where either: 1) the error did not Harmless error is established where either: 1) the error did not
prejudice the defendant; 2) the erroneously admitted evidence prejudice the defendant; 2) the erroneously admitted evidence
was merely cumulative of other untainted evidence; or 3) where was merely cumulative of other untainted evidence; or 3) where
the properly admitted and uncontradicted evidence of guilt was the properly admitted and uncontradicted evidence of guilt was
so overwhelming and the prejudicial effect of the error was so overwhelming and the prejudicial effect of the error was
so insignificant by comparison that the error could not have so insignificant by comparison that the error could not have
contributed to the verdict. Commonwealth v. Owens, 929 A.2d contributed to the verdict. Commonwealth v. Owens, 929 A.2d
1187, 1192 (Pa.Super.2007). As noted above, the evidence against 1187, 1192 (Pa.Super.2007). As noted above, the evidence against
Appellant in this case was overwhelming. We conclude that any Appellant in this case was overwhelming. We conclude that any

error in admitting evidence of the magazines was insignificant error in admitting evidence of the magazines was insignificant
in comparison to the properly admitted evidence, and the error in comparison to the properly admitted evidence, and the error
could not have contributed to the verdict. could not have contributed to the verdict.
936 A.2d at 1144. 936 A.2d at 1144.
7.18 SPOUSAL PRIVILEGES53 7.18 SPOUSAL PRIVILEGES53
A. Spousal Privilege Testimonial Privilege A. Spousal Privilege Testimonial Privilege
Pennsylvania has a statutorily enacted spousal privilege, which disqualifies Pennsylvania has a statutorily enacted spousal privilege, which disqualifies
a husband or wife from giving any testimony adverse to the spouse. This rule has a husband or wife from giving any testimony adverse to the spouse. This rule has
exceptions: exceptions:
5913. Spouses as witnesses against each other 5913. Spouses as witnesses against each other
proceeding a person shall have the privilege, which he or she proceeding a person shall have the privilege, which he or she
may waive, not to testify against his or her then lawful spouse may waive, not to testify against his or her then lawful spouse
except that there shall be no such privilege: except that there shall be no such privilege:
... ...
(2) in any criminal proceeding against either for bodily injury (2) in any criminal proceeding against either for bodily injury
or violence attempted, done or threatened upon the other, or or violence attempted, done or threatened upon the other, or
upon the minor children of said husband and wife, or the minor upon the minor children of said husband and wife, or the minor
children of either of them, or any minor child in their care or children of either of them, or any minor child in their care or
custody, or in the care or custody of either of them; custody, or in the care or custody of either of them;
... ...
(4) in any criminal proceeding in which one of the charges (4) in any criminal proceeding in which one of the charges
pending against the defendant includes murder, involuntary pending against the defendant includes murder, involuntary
deviate sexual intercourse or rape. deviate sexual intercourse or rape.
42 Pa. Cons. Stat. Ann. 5913 (emphasis added). 42 Pa. Cons. Stat. Ann. 5913 (emphasis added).
This section makes mandatory the testimony of a spouse where the defendant This section makes mandatory the testimony of a spouse where the defendant
spouse is charged with murder, rape or involuntary deviate sexual intercourse, in matters spouse is charged with murder, rape or involuntary deviate sexual intercourse, in matters
involving bodily injury to violence to family members or minors. Commonwealth involving bodily injury to violence to family members or minors. Commonwealth
v. Hancharik, 565 A.2d 782, 786 (Pa. Super. 1989), affd, 534 Pa. 435, 633 A.2d 1074 v. Hancharik, 565 A.2d 782, 786 (Pa. Super. 1989), affd, 534 Pa. 435, 633 A.2d 1074
(1993). (1993).
It should be noted that 5913 and 5914 involve two distinct rules. It should be noted that 5913 and 5914 involve two distinct rules.
Commonwealth v. Hancharik, 534 Pa. 435, 439, 633 A.2d 1074, 1076 (1993). Section Commonwealth v. Hancharik, 534 Pa. 435, 439, 633 A.2d 1074, 1076 (1993). Section
5914 is discussed below. 5914 is discussed below.
53 Other laws which created a privilege against the production of records are discussed in Chapter 6, Section 6.9, PRIVILEGES. 53 Other laws which created a privilege against the production of records are discussed in Chapter 6, Section 6.9, PRIVILEGES.

B. Spousal Privilege Confidential Communications Privilege B. Spousal Privilege Confidential Communications Privilege
Pennsylvania has a statutorily enacted spousal privilege in relation to confidential Pennsylvania has a statutorily enacted spousal privilege in relation to confidential
communications between spouses. This rule is much more limited than the testimonial communications between spouses. This rule is much more limited than the testimonial
rule found in 5913: rule found in 5913:
5914. Confidential communications between spouses 5914. Confidential communications between spouses
proceeding neither husband nor wife shall be competent or proceeding neither husband nor wife shall be competent or
permitted to testify to confidential communications made by permitted to testify to confidential communications made by
one to the other, unless this privilege is waived upon the trial. one to the other, unless this privilege is waived upon the trial.
42 Pa. Cons. Stat. Ann. 5914. This statutory privilege is substantially a reenactment 42 Pa. Cons. Stat. Ann. 5914. This statutory privilege is substantially a reenactment
of legislation dating back to 1887, which itself had roots in the common law. of legislation dating back to 1887, which itself had roots in the common law.
Commonwealth v. Chiappini, 566 Pa. 507, 511, 782 A.2d 490, 492 (2001)(plurality). Commonwealth v. Chiappini, 566 Pa. 507, 511, 782 A.2d 490, 492 (2001)(plurality).
We recognize that [c]ommunications between spouses are We recognize that [c]ommunications between spouses are
presumed to be confidential, and the party opposing application presumed to be confidential, and the party opposing application
of the rule disqualifying such testimony bears the burden of of the rule disqualifying such testimony bears the burden of
overcoming this presumption. Commonwealth v. Burrows, overcoming this presumption. Commonwealth v. Burrows,
779 A.2d 509, 514 (Pa.Super. 2001)(internal citation omitted). 779 A.2d 509, 514 (Pa.Super. 2001)(internal citation omitted).
The privilege under 42 Pa. Cons. Stat. Ann. 5914 prevents a The privilege under 42 Pa. Cons. Stat. Ann. 5914 prevents a
spouse from testifying against the declarant-defendant spouse spouse from testifying against the declarant-defendant spouse
regarding any communications which were confidential when regarding any communications which were confidential when
made and which were made during the marital relationship. made and which were made during the marital relationship.
Commonwealth v. May, 540 Pa. 237, 656 A.2d 1335, 1341- Commonwealth v. May, 540 Pa. 237, 656 A.2d 1335, 1341-
1342 (1995)(footnote omitted) (emphasis supplied). Our 1342 (1995)(footnote omitted) (emphasis supplied). Our
Supreme Court has explained that where the challenged spousal Supreme Court has explained that where the challenged spousal
communication was divulged by the declarant-defendant to communication was divulged by the declarant-defendant to
third parties, the statement does not qualify as [a] confidential third parties, the statement does not qualify as [a] confidential
communication. Commonwealth v. Hancharik, 534 Pa. 435, 633 communication. Commonwealth v. Hancharik, 534 Pa. 435, 633
A.2d 1074, 1077 (1993). A.2d 1074, 1077 (1993).
Commonwealth v. G.Y., 63 A.3d 259, 267 (Pa. Super. 2013). Commonwealth v. G.Y., 63 A.3d 259, 267 (Pa. Super. 2013).
This privilege is waivable but only by the spouse asserting the privilege. This privilege is waivable but only by the spouse asserting the privilege.
Commonwealth v. Luster, 71 A.3d 1029, 1045 (Pa. Super. 2013); Commonwealth v. Commonwealth v. Luster, 71 A.3d 1029, 1045 (Pa. Super. 2013); Commonwealth v.
May, 540 Pa. 237, 656 A.2d 1335 (1995), cert. denied, 525 U.S. 1078, 119 S.Ct. 818, 142 May, 540 Pa. 237, 656 A.2d 1335 (1995), cert. denied, 525 U.S. 1078, 119 S.Ct. 818, 142
L.Ed.2d 676 (1999). L.Ed.2d 676 (1999).
Commonwealth v. Dubin, 581 A.2d 944 (Pa. Super. (990), appeal denied, Commonwealth v. Dubin, 581 A.2d 944 (Pa. Super. (990), appeal denied,
527 Pa. 592, 588 A.2d 912 (1991): pretrial suppression of testimony of 527 Pa. 592, 588 A.2d 912 (1991): pretrial suppression of testimony of
estranged wife was premature. estranged wife was premature.

Communications between spouses during marriage are presumed to be Communications between spouses during marriage are presumed to be
privileged. Commonwealth v. McBurrows, 779 A.2d 509 (Pa. Super. 2001) (en banc), privileged. Commonwealth v. McBurrows, 779 A.2d 509 (Pa. Super. 2001) (en banc),
appeal denied, 572 Pa. 732, 815 A.2d 632 (2002), cert. denied, 540 U.S. 829, 124 S.Ct. 60, appeal denied, 572 Pa. 732, 815 A.2d 632 (2002), cert. denied, 540 U.S. 829, 124 S.Ct. 60,
157 L.Ed.2d 55 (2003). Therefore, the party seeking to admit such communications as 157 L.Ed.2d 55 (2003). Therefore, the party seeking to admit such communications as
evidence bears the burden of overcoming this presumption. Id. evidence bears the burden of overcoming this presumption. Id.
Communications between spouses made in the presence of third parties are not Communications between spouses made in the presence of third parties are not
privileged. Generally, the presence of third parties negates the confidential nature of privileged. Generally, the presence of third parties negates the confidential nature of
the communication. Commonwealth v. May, 540 Pa. 237, 251, 656 A.2d 1335, 1342 the communication. Commonwealth v. May, 540 Pa. 237, 251, 656 A.2d 1335, 1342
(1995), cert. denied, 525 U.S. 1078, 119 S.Ct. 818, 142 L.Ed.2d 676 (1999)(defendant had (1995), cert. denied, 525 U.S. 1078, 119 S.Ct. 818, 142 L.Ed.2d 676 (1999)(defendant had
no privilege in letters sent to his wife from prison after defendant signed form allowing no privilege in letters sent to his wife from prison after defendant signed form allowing
for the inspection of his mail). for the inspection of his mail).
The section 5914 privilege extends to oral or written words, expressions The section 5914 privilege extends to oral or written words, expressions
or gestures which are intended by one spouse to convey a message to the other. or gestures which are intended by one spouse to convey a message to the other.
Commonwealth v. Hunter, 60 A.3d 156, 157 n. 2 (Pa. Super. 2013). However, the Commonwealth v. Hunter, 60 A.3d 156, 157 n. 2 (Pa. Super. 2013). However, the
privilege does not extend to the observations of a spouses conduct during marriage. privilege does not extend to the observations of a spouses conduct during marriage.
Commonwealth v. McBurrows, 779 A.2d 509, 519 (Pa. Super. 2001) (en banc), appeal Commonwealth v. McBurrows, 779 A.2d 509, 519 (Pa. Super. 2001) (en banc), appeal
denied, 572 Pa. 732, 815 A.2d 632 (2002), cert. denied, 540 U.S. 829, 124 S.Ct. 60, 157 denied, 572 Pa. 732, 815 A.2d 632 (2002), cert. denied, 540 U.S. 829, 124 S.Ct. 60, 157
L.Ed.2d 55 (2003). L.Ed.2d 55 (2003).
Commonwealth v. Newman, 534 Pa. 424, 633 A.2d 1069 (1993): Commonwealth v. Newman, 534 Pa. 424, 633 A.2d 1069 (1993):
wifes knowledge of defendants companions and whereabouts on date wifes knowledge of defendants companions and whereabouts on date
of crime not privileged as knowledge was based on observation, not of crime not privileged as knowledge was based on observation, not
communication. communication.
In Commonwealth v. Spetzer, 572 Pa. 17, 39, 813 A.2d 707, 720-721 (2002), the In Commonwealth v. Spetzer, 572 Pa. 17, 39, 813 A.2d 707, 720-721 (2002), the
Pennsylvania Supreme Court found that the privilege did not extend to the statements Pennsylvania Supreme Court found that the privilege did not extend to the statements
made by the defendant to his wife regarding commission of past crimes, current criminal made by the defendant to his wife regarding commission of past crimes, current criminal
conduct, or plans for future criminal conduct in a case involving the sexual abuse of conduct, or plans for future criminal conduct in a case involving the sexual abuse of
stepchildren by the stepfather/defendant. The Supreme Court explained: stepchildren by the stepfather/defendant. The Supreme Court explained:
It is safe to say that the communications appellee made to his It is safe to say that the communications appellee made to his
wife here-concerning appellees past (e.g., rape), continuing wife here-concerning appellees past (e.g., rape), continuing
(e.g., witness intimidation), and future-intended ( e.g., attempted (e.g., witness intimidation), and future-intended ( e.g., attempted
sexual assaults) crimes against his wife and her minor children- sexual assaults) crimes against his wife and her minor children-
are not the sensitive, marital harmony-inspiring communications are not the sensitive, marital harmony-inspiring communications
contemplated by the common law authorities, or the Pennsylvania contemplated by the common law authorities, or the Pennsylvania
General Assembly, in erecting this privilege. To the contrary, these General Assembly, in erecting this privilege. To the contrary, these
communications were intended to further marital disharmony. communications were intended to further marital disharmony.
572 Pa. at 39, 813 A.2d at 720-721. Therefore, the Court in Spetzer, without setting forth 572 Pa. at 39, 813 A.2d at 720-721. Therefore, the Court in Spetzer, without setting forth
a definitive rule, held that there could have been no reasonable expectation of marital a definitive rule, held that there could have been no reasonable expectation of marital
confidentiality in statements made regarding the perpetration of child abuse. 572 Pa. at confidentiality in statements made regarding the perpetration of child abuse. 572 Pa. at
41-43, 813 A.2d at 722-723. 41-43, 813 A.2d at 722-723.

The Child Protective Services Law, 23 Pa.Cons.Stat.Ann. 6301 et seq., The Child Protective Services Law, 23 Pa.Cons.Stat.Ann. 6301 et seq.,
abrogates the spousal confidential communications privilege in cases involving child abrogates the spousal confidential communications privilege in cases involving child
abuse: abuse:
6381. Evidence in court proceedings 6381. Evidence in court proceedings

... ...
(c) Privileged communications.--Except for privileged (c) Privileged communications.--Except for privileged
communications between a lawyer and a client and between a communications between a lawyer and a client and between a
minister and a penitent, a privilege of confidential communication minister and a penitent, a privilege of confidential communication
between husband and wife or between any professional between husband and wife or between any professional
person, including, but not limited to, physicians, psychologists, person, including, but not limited to, physicians, psychologists,
counselors, employees of hospitals, clinics, day-care centers counselors, employees of hospitals, clinics, day-care centers
and schools and their patients or clients, shall not constitute and schools and their patients or clients, shall not constitute
grounds for excluding evidence at any proceeding regarding grounds for excluding evidence at any proceeding regarding
child abuse or the cause of child abuse. child abuse or the cause of child abuse.
23 Pa.Cons.Stat.Ann. 6381(c)(emphasis added). 23 Pa.Cons.Stat.Ann. 6381(c)(emphasis added).
However, neither the Legislature nor the Pennsylvania Supreme Court has yet However, neither the Legislature nor the Pennsylvania Supreme Court has yet
to definitively say that Section 6381(c) overrides 42 Pa. Cons. Stat. Ann. 5914 in a to definitively say that Section 6381(c) overrides 42 Pa. Cons. Stat. Ann. 5914 in a
criminal case. See Commonwealth v. Spetzer, 572 Pa. 17, 39, 41, 813 A.2d 707, 722 criminal case. See Commonwealth v. Spetzer, 572 Pa. 17, 39, 41, 813 A.2d 707, 722
(2002). In a criminal case where a defendant-spouse was the alleged perpetrator in (2002). In a criminal case where a defendant-spouse was the alleged perpetrator in
current child abuse proceedings, the Superior Court similarly held that the Section current child abuse proceedings, the Superior Court similarly held that the Section
5914 privilege does not apply at the defendants criminal trial; however, the holding 5914 privilege does not apply at the defendants criminal trial; however, the holding
specifically did not go so far as to apply thte CPSLs section 6381(c) exception in all specifically did not go so far as to apply thte CPSLs section 6381(c) exception in all
criminal prosecutions involving child abuse. Commonwealth v. Hunter, 60 A.3d 156, criminal prosecutions involving child abuse. Commonwealth v. Hunter, 60 A.3d 156,
161 n.17 (Pa. Super 2013) 161 n.17 (Pa. Super 2013)
In analyzing Spetzer in the context of a criminal child sex abuse case, the Superior In analyzing Spetzer in the context of a criminal child sex abuse case, the Superior
Court examined the interplay between the Child Protective Services Law and 5914 and Court examined the interplay between the Child Protective Services Law and 5914 and
repeated the Spetzer comment that a husband who describes to his wife his previous repeated the Spetzer comment that a husband who describes to his wife his previous
rape of her child ... can have no reasonable expectation under Pennsylvania law that rape of her child ... can have no reasonable expectation under Pennsylvania law that
that communication will remain confidential. Commonwealth v. G.Y., 63 A.3d 259, 267 that communication will remain confidential. Commonwealth v. G.Y., 63 A.3d 259, 267
(2013). Compare, B.K. v. Department of Public Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. (2013). Compare, B.K. v. Department of Public Welfare, 36 A.3d 649, 657 (Pa. Cmwlth.
2012)(no spousal confidential communications privilege in civil expungement hearing 2012)(no spousal confidential communications privilege in civil expungement hearing
in light of 6381(c). in light of 6381(c).

Suggested Stages of a Criminal Jury Trial Suggested Stages of a Criminal Jury Trial
Chapter Seven Addendum 1 Chapter Seven Addendum 1

1. Juror Information Questionnaire 1. Juror Information Questionnaire

Have all prospective jurors complete the standard, confidential Have all prospective jurors complete the standard, confidential
juror information questionnaire. Pa.R.Crim.P. 631(D) & 632. juror information questionnaire. Pa.R.Crim.P. 631(D) & 632.
Questionnaires are destroyed at completion of jurors service. Questionnaires are destroyed at completion of jurors service.
Pa.R.Crim.P. 632(F) & (G). Pa.R.Crim.P. 632(F) & (G).
2. Preliminary Instructions to Jury Panel 2. Preliminary Instructions to Jury Panel

Trial Judge addresses opening remarks to jury panel in preparation Trial Judge addresses opening remarks to jury panel in preparation
for voir dire. for voir dire.
3. Jury Panel Sworn 3. Jury Panel Sworn

Have court reporter swear in panel members. Pa.R.Crim.P. 631(B). Have court reporter swear in panel members. Pa.R.Crim.P. 631(B).
Judge must be present unless waived. Pa.R.Crim.P. 631(A). Judge must be present unless waived. Pa.R.Crim.P. 631(A).
4. Conduct Voir Dire 4. Conduct Voir Dire

Typically prosecution first, followed by defense. Typically prosecution first, followed by defense.
The purpose of voir dire is to secure a competent, fair, The purpose of voir dire is to secure a competent, fair,
impartial and unprejudiced jury. It is well established that impartial and unprejudiced jury. It is well established that
the scope of voir dire rests in the sound discretion of the the scope of voir dire rests in the sound discretion of the
trial court, whose decision will not be reversed on appeal trial court, whose decision will not be reversed on appeal
absent palpable error. Commonwealth v. Mattison, --- Pa. absent palpable error. Commonwealth v. Mattison, --- Pa.
---, 82 A.3d 386, 397 (2013). ---, 82 A.3d 386, 397 (2013).
The manner in which voir dire is conducted is left to the The manner in which voir dire is conducted is left to the
discretion of the trial court. Commonwealth v. Fitzgerald, discretion of the trial court. Commonwealth v. Fitzgerald,
979 A.2d 908, 911 (Pa. Super. 2009), appeal denied, 605 Pa. 979 A.2d 908, 911 (Pa. Super. 2009), appeal denied, 605 Pa.
694, 990 A.2d 727 (2010); Pa.R.Crim.P. 631 (D). 694, 990 A.2d 727 (2010); Pa.R.Crim.P. 631 (D).
Neither counsel for the defendant nor the Commonwealth Neither counsel for the defendant nor the Commonwealth
should be permitted to ask direct or hypothetical questions should be permitted to ask direct or hypothetical questions
designed to disclose a jurors present impression or opinion designed to disclose a jurors present impression or opinion
as to what his decision will likely be under certain facts as to what his decision will likely be under certain facts
which may be developed in the trial of the case. Voir dire is which may be developed in the trial of the case. Voir dire is
not to be utilized as a tool for the attorneys to ascertain the not to be utilized as a tool for the attorneys to ascertain the
effectiveness of potential trial strategies. Commonwealth v. effectiveness of potential trial strategies. Commonwealth v.
Manley, 985 A.2d 256, 264 (Pa. Super. 2009), appeal denied, Manley, 985 A.2d 256, 264 (Pa. Super. 2009), appeal denied,
606 Pa. 671, 996 A.2d 491 (2010)(citations omitted). 606 Pa. 671, 996 A.2d 491 (2010)(citations omitted).
In a case involving charges of involuntary deviate sexual In a case involving charges of involuntary deviate sexual
intercourse, the trial court in Commonwealth v. Ellison, intercourse, the trial court in Commonwealth v. Ellison,
588 Pa. 1, 902 A.2d 419 (2006), refused to permit, on voir 588 Pa. 1, 902 A.2d 419 (2006), refused to permit, on voir
dire, the question of whether prospective jurors or anyone dire, the question of whether prospective jurors or anyone
close to them had been the victim of a sexually violent crime. close to them had been the victim of a sexually violent crime.

The Pennsylvania Supreme Court affirmed in a plurality The Pennsylvania Supreme Court affirmed in a plurality
decision which was only joined by two other Justices. decision which was only joined by two other Justices.
To explore possible racial bias, see Commonwealth v. To explore possible racial bias, see Commonwealth v.
Futch, 469 Pa. 422, 426-428, 366 A.2d 246, 248 (1976); Futch, 469 Pa. 422, 426-428, 366 A.2d 246, 248 (1976);
Commonwealth v. Stinson, 628 A.2d 1165, 1167-1168 (Pa. Commonwealth v. Stinson, 628 A.2d 1165, 1167-1168 (Pa.
Super. 1993), appeal denied, 537 Pa. 608, 641 A.2d 309 (Pa. Super. 1993), appeal denied, 537 Pa. 608, 641 A.2d 309 (Pa.
Feb 11, 1994). Feb 11, 1994).
Challenges for Cause: out of hearing of jury, hear challenges for Challenges for Cause: out of hearing of jury, hear challenges for
cause. cause.
The test for determining whether a prospective juror The test for determining whether a prospective juror
should be disqualified is whether he is willing and able to should be disqualified is whether he is willing and able to
eliminate the influence of any scruples and render a verdict eliminate the influence of any scruples and render a verdict
according to the evidence, and this is to be determined on according to the evidence, and this is to be determined on
the basis of answers to questions and demeanor.... It must the basis of answers to questions and demeanor.... It must
be determined whether any biases or prejudices can be put be determined whether any biases or prejudices can be put
aside on proper instruction of the court. ... A challenge for aside on proper instruction of the court. ... A challenge for
cause should be granted when the prospective juror has cause should be granted when the prospective juror has
such a close relationship, familial, financial, or situational, such a close relationship, familial, financial, or situational,
with the parties, counsel, victims, or witnesses that the court with the parties, counsel, victims, or witnesses that the court
will presume a likelihood of prejudice or demonstrates a will presume a likelihood of prejudice or demonstrates a
likelihood of prejudice by his or her conduct or answers likelihood of prejudice by his or her conduct or answers
to questions.... The decision on whether to disqualify is to questions.... The decision on whether to disqualify is
within the discretion of the trial court and will not be within the discretion of the trial court and will not be
reversed in the absence of a palpable abuse of discretion.... reversed in the absence of a palpable abuse of discretion....
Commonwealth v. Janda, 14 A.3d 147, 162 (Pa. Super. Commonwealth v. Janda, 14 A.3d 147, 162 (Pa. Super.
2011). 2011).
Number of peremptory challenges calculated in accordance with Number of peremptory challenges calculated in accordance with
5. Clerk Reads Names of 12 Jurors and 2 Alternates 5. Clerk Reads Names of 12 Jurors and 2 Alternates
Excuse remaining jurors. Excuse remaining jurors.
Clerk swears in trial jury panel. Pa.R.Crim.P. 640. Clerk swears in trial jury panel. Pa.R.Crim.P. 640.
6. Preliminary Instructions to Trial Jury 6. Preliminary Instructions to Trial Jury

Trial Judge gives preliminary trial instructions to Trial Jury.1 Trial Judge gives preliminary trial instructions to Trial Jury.1
7. Opening Statements 7. Opening Statements

Commonwealth Attorney opens first to the jury. Pa.R.Crim.P. Commonwealth Attorney opens first to the jury. Pa.R.Crim.P.
604(A).2 604(A).2
1 The trial judge may give instructions to the jury before the taking of evidence or at anytime during the trial as the judge deems necessary 1 The trial judge may give instructions to the jury before the taking of evidence or at anytime during the trial as the judge deems necessary
and appropriate for the jurys guidance in hearing the case. Pa.R.CRim.P. 647(D). At a minimum, the preliminary instructions should and appropriate for the jurys guidance in hearing the case. Pa.R.CRim.P. 647(D). At a minimum, the preliminary instructions should
orient the jurors to the trial procedures and to their duties and function as jurors. Comment following Rule 647. orient the jurors to the trial procedures and to their duties and function as jurors. Comment following Rule 647.
2 A prosecutors opening statements must be based on evidence that she plans to introduce at trial, and must not include mere assertions 2 A prosecutors opening statements must be based on evidence that she plans to introduce at trial, and must not include mere assertions
designed to inflame the jurys emotions. However, a prosecutors opening statements may refer to facts that she reasonably believes designed to inflame the jurys emotions. However, a prosecutors opening statements may refer to facts that she reasonably believes
will be established at trial. Additionally, the prosecution, as well as the defense, is afforded reasonable latitude in presenting opening will be established at trial. Additionally, the prosecution, as well as the defense, is afforded reasonable latitude in presenting opening
arguments to the jury. Relief will be granted for prosecutorial misconduct only where the unavoidable effect of the prosecutors conduct arguments to the jury. Relief will be granted for prosecutorial misconduct only where the unavoidable effect of the prosecutors conduct
was to prejudice the jury so as to form in their minds a fixed bias towards the accused and to impede their ability to objectively weigh the was to prejudice the jury so as to form in their minds a fixed bias towards the accused and to impede their ability to objectively weigh the
evidence and render a true verdict. Commonwealth v. Begley, 566 Pa. 239, 274, 780 A.2d 605, 626 (2001). evidence and render a true verdict. Commonwealth v. Begley, 566 Pa. 239, 274, 780 A.2d 605, 626 (2001).

Defense Counsel then opens to the jury, or reserves to immediately Defense Counsel then opens to the jury, or reserves to immediately
prior to defense testimony. Pa.R.Crim.P. 604(A). prior to defense testimony. Pa.R.Crim.P. 604(A).
8. Commonwealths Case 8. Commonwealths Case

The Commonwealth presents its case-in-chief. See Pa.R.E. 611, The Commonwealth presents its case-in-chief. See Pa.R.E. 611,
Mode and Order of Examining Witnesses and Presenting Mode and Order of Examining Witnesses and Presenting
Evidence. Evidence.
9. Defense Motions 9. Defense Motions

Trial Judge hears defense motions outside the hearing of the jury Trial Judge hears defense motions outside the hearing of the jury
but on the record. but on the record.
Appropriate motion at the close of the Commonwealths case-in- Appropriate motion at the close of the Commonwealths case-in-
chief is a motion for judgment of acquittal. Pa.R.Crim.P. 606(A)(1).3 chief is a motion for judgment of acquittal. Pa.R.Crim.P. 606(A)(1).3
10. Defense Case 10. Defense Case

The defense attorney may present evidence on behalf of the The defense attorney may present evidence on behalf of the
defendant. See Pa.R.E. 611, Mode and Order of Examining defendant. See Pa.R.E. 611, Mode and Order of Examining
Witnesses and Presenting Evidence. Witnesses and Presenting Evidence.

11. Commonwealths Rebuttal Evidence 11. Commonwealths Rebuttal Evidence
Admission or rejection of rebuttal evidence is within the sound Admission or rejection of rebuttal evidence is within the sound
discretion of the trial court.4 discretion of the trial court.4
12. Defense Motions 12. Defense Motions

Trial Judge hears defense motions outside the hearing of the jury Trial Judge hears defense motions outside the hearing of the jury
but on the record. but on the record.
Appropriate motion at the close of all evidence is a motion for Appropriate motion at the close of all evidence is a motion for
judgment of acquittal. Pa.R.Crim.P. 606(A)(2).5 judgment of acquittal. Pa.R.Crim.P. 606(A)(2).5
13. Suggested Jury Instructions 13. Suggested Jury Instructions

Trial Judge receives and reviews suggested jury instructions. Trial Judge receives and reviews suggested jury instructions.
Pa.R.Crim.P. 647.6 Pa.R.Crim.P. 647.6
Trial Judge holds charge conference, on the record, with counsel Trial Judge holds charge conference, on the record, with counsel
to discuss the suggested jury instructions, enter rulings, and make to discuss the suggested jury instructions, enter rulings, and make
final decisions regarding charge. final decisions regarding charge.
3 A motion for judgment of acquittal shall not constitute an admission of any facts or inferences except for the purpose of deciding the 3 A motion for judgment of acquittal shall not constitute an admission of any facts or inferences except for the purpose of deciding the
motion. If the motion is made at the close of the Commonwealths evidence and is not granted, the defendant may present evidence motion. If the motion is made at the close of the Commonwealths evidence and is not granted, the defendant may present evidence
without having reserved the right to do so, and the case shall otherwise proceed as if the motion had not been made. Pa.R.CRim.P. without having reserved the right to do so, and the case shall otherwise proceed as if the motion had not been made. Pa.R.CRim.P.
606(B). 606(B).
4 Commonwealth v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004), appeal dismissed as improvidently granted, 582 Pa. 403, 871 A.2d 1248 4 Commonwealth v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004), appeal dismissed as improvidently granted, 582 Pa. 403, 871 A.2d 1248
(2005). (2005).
5 If a defendant moves for judgment of acquittal at the close of all the evidence, the court may reserve decision until after the jury returns 5 If a defendant moves for judgment of acquittal at the close of all the evidence, the court may reserve decision until after the jury returns
a guilty verdict or after the jury is discharged without agreeing upon a verdict. Pa.R.CRim.P. 606(C). a guilty verdict or after the jury is discharged without agreeing upon a verdict. Pa.R.CRim.P. 606(C).
6 Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable 6 Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable
time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. Before closing arguments, time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. Before closing arguments,
the trial judge shall inform the parties on the record of the judges rulings on all written requests. The trial judge shall charge the jury the trial judge shall inform the parties on the record of the judges rulings on all written requests. The trial judge shall charge the jury
after the arguments are completed. Pa.R.CRim.P. 647(A). after the arguments are completed. Pa.R.CRim.P. 647(A).

14. Instructions to Jury To Prepare Them For Closing Arguments 14. Instructions to Jury To Prepare Them For Closing Arguments
15. Closing Arguments 15. Closing Arguments

Defense Counsel gives closing argument first. Pa.R.Crim.P. 604(B). Defense Counsel gives closing argument first. Pa.R.Crim.P. 604(B).
Prosecutor gives closing argument. Regardless of number of Prosecutor gives closing argument. Regardless of number of
defendants, prosecutor always makes closing argument last. defendants, prosecutor always makes closing argument last.
Pa.R.Crim.P. 604(B). Pa.R.Crim.P. 604(B).
16. Charge of the Court 16. Charge of the Court

Trial Judge gives jury final instructions. Pa.R.Crim.P. 647. Trial Judge gives jury final instructions. Pa.R.Crim.P. 647.
Charge broken up into four sections: Charge broken up into four sections:
(1) Key concepts: the burden of proof, presumption of innocence, (1) Key concepts: the burden of proof, presumption of innocence,
and the standard of beyond a reasonable doubt; and the standard of beyond a reasonable doubt;
(2) Instructions regarding the review of evidence, including (2) Instructions regarding the review of evidence, including
credibility decisions; credibility decisions;
(3) Specifics of Case: elements of crimes, specific law regarding (3) Specifics of Case: elements of crimes, specific law regarding
defenses, and review of testimony; defenses, and review of testimony;
(4) Concluding instructions on the manner in which the jury is to (4) Concluding instructions on the manner in which the jury is to
handle deliberations. handle deliberations.
Trial judge makes formal rulings on submitted points for charge Trial judge makes formal rulings on submitted points for charge
before dismissing jury; grants counsel opportunity to make specific before dismissing jury; grants counsel opportunity to make specific
objections to refused points or other matters.7 objections to refused points or other matters.7
17. Send Jury to Deliberate 17. Send Jury to Deliberate

Send 12 principal jurors to deliberate. Send 12 principal jurors to deliberate.
Hear arguments of counsel on the record and make record of Hear arguments of counsel on the record and make record of
decision if any exhibits go out with jury. Pa.R.Crim.P. 646. decision if any exhibits go out with jury. Pa.R.Crim.P. 646.
Excuse alternates. Excuse alternates.
18. Enter the Verdict 18. Enter the Verdict
19. Defense Motions If Conviction 19. Defense Motions If Conviction

Defense may make an oral motion for judgment of acquittal Defense may make an oral motion for judgment of acquittal
immediately after verdict. Pa.R.Crim.P. 606(A)(4). immediately after verdict. Pa.R.Crim.P. 606(A)(4).

20. Excuse Jurors 20. Excuse Jurors
21. Colloquy Following Verdict If Conviction 21. Colloquy Following Verdict If Conviction
Set Sentencing Date.8 Set Sentencing Date.8
Order Presentence Investigation Report, if necessary. Order Presentence Investigation Report, if necessary.
Address Bail in accordance with Pa.R.Crim.P. 521. Address Bail in accordance with Pa.R.Crim.P. 521.
7 No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury 7 No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury
retires to deliberate. All such objections shall be made beyond the hearing of the jury. Pa.R.CRim.P. 647(B). See also, Pa.R.A.P. 302(b). retires to deliberate. All such objections shall be made beyond the hearing of the jury. Pa.R.CRim.P. 647(B). See also, Pa.R.A.P. 302(b).
8 In accordance with Pa.R.CRim.P. 704(A), sentencing must typically be within 90 days of conviction. 8 In accordance with Pa.R.CRim.P. 704(A), sentencing must typically be within 90 days of conviction.

Suggested
SexualStages of aand
Offenses Criminal Jury Trial
Tier System Suggested
Tier System
Chapter Seven Addendum 2 Chapter Seven Addendum 2

Sexual Offenses and Tier System Sexual Offenses and Tier System
42 PA.CONS.STAT.ANN. 9799.14 42 PA.CONS.STAT.ANN. 9799.14
Tier I Sexual Offenses Tier I Sexual Offenses

15 Year Registration Period 15 Year Registration Period
In addition to others, the following crimes or any attempt, conspiracy or solicitation In addition to others, the following crimes or any attempt, conspiracy or solicitation
thereof: thereof:
Unlawful Restraint: 18 PA.CONS.STAT.ANN. 2902(b) Unlawful Restraint: 18 PA.CONS.STAT.ANN. 2902(b)

False Imprisonment: 18 PA.CONS.STAT.ANN. 2903(b) False Imprisonment: 18 PA.CONS.STAT.ANN. 2903(b)
Interference with Custody of Children: 18 PA.CONS.STAT.ANN. 2904 Interference with Custody of Children: 18 PA.CONS.STAT.ANN. 2904
Luring a Child into a Motor Vehicle or Structure: 18 PA.CONS.STAT.ANN. 2910 Luring a Child into a Motor Vehicle or Structure: 18 PA.CONS.STAT.ANN. 2910
Institutional Sexual Assault: 18 PA.CONS.STAT.ANN. 3124.2(a) Institutional Sexual Assault: 18 PA.CONS.STAT.ANN. 3124.2(a)
Indecent Assault: 18 PA.CONS.STAT.ANN. 3126(a)(1) Indecent Assault: 18 PA.CONS.STAT.ANN. 3126(a)(1)
Corruption of Minors (F3): 18 PA.CONS.STAT.ANN. 6301(a)(1)(ii) Corruption of Minors (F3): 18 PA.CONS.STAT.ANN. 6301(a)(1)(ii)
Sexual Abuse of Children: 18 PA.CONS.STAT.ANN. 6312(d) Sexual Abuse of Children: 18 PA.CONS.STAT.ANN. 6312(d)
Invasion of Privacy: 18 PA.CONS.STAT.ANN. 7507.1 Invasion of Privacy: 18 PA.CONS.STAT.ANN. 7507.1
Video Voyeurism: 18 U.S.C. 1801 Video Voyeurism: 18 U.S.C. 1801
Certain Activities Relating to Material Involving the Sexual Exploitation of Minors: Certain Activities Relating to Material Involving the Sexual Exploitation of Minors:
18 U.S.C. 2252(a)(4) 18 U.S.C. 2252(a)(4)
Certain Activities Relating to Material Constituting or Containing Child Certain Activities Relating to Material Constituting or Containing Child
Pornography: 18 U.S.C. 2252A Pornography: 18 U.S.C. 2252A
Misleading Domain Names on the Internet: 18 U.S.C. 2252B Misleading Domain Names on the Internet: 18 U.S.C. 2252B
Misleading Words or Digital Images on the Internet: 18 U.S.C. 2252C Misleading Words or Digital Images on the Internet: 18 U.S.C. 2252C
Coercion and Enticement: 18 U.S.C. 2422(a) Coercion and Enticement: 18 U.S.C. 2422(a)
Transportation of Minors: 18 U.S.C. 2423(b) Transportation of Minors: 18 U.S.C. 2423(b)
Illicit Sexual Conduct in Foreign Places: 18 U.S.C. 2423(c) Illicit Sexual Conduct in Foreign Places: 18 U.S.C. 2423(c)
Filing Factual Statement About Alien Individual: 18 U.S.C. 2424 Filing Factual Statement About Alien Individual: 18 U.S.C. 2424
Use of Interstate Facilities to Transmit Information about a Minor: 18 U.S.C. 2425 Use of Interstate Facilities to Transmit Information about a Minor: 18 U.S.C. 2425
Tier II Sexual Offenses Tier II Sexual Offenses

thereof: thereof:
Statutory Sexual Assault: 18 PA.CONS.STAT.ANN. 3122.1(a)(2) Statutory Sexual Assault: 18 PA.CONS.STAT.ANN. 3122.1(a)(2)
Prostitution and Related Offenses: 18 PA.CONS.STAT.ANN. 5902(b.1) Prostitution and Related Offenses: 18 PA.CONS.STAT.ANN. 5902(b.1)

Suggested
Tier System Suggested
Tier System
Obscene and Other Sexual Materials and Performances: 18 PA.CONS.STAT.ANN. Obscene and Other Sexual Materials and Performances: 18 PA.CONS.STAT.ANN.
5903(a)(3)(ii), (4)(ii), (5)(ii) or (6) 5903(a)(3)(ii), (4)(ii), (5)(ii) or (6)
Sexual Abuse of Children, 18 PA.CONS.STAT.ANN. 6312(b) & (c) Sexual Abuse of Children, 18 PA.CONS.STAT.ANN. 6312(b) & (c)
Unlawful Contact with Minor: 18 PA.CONS.STAT.ANN. 6318 Unlawful Contact with Minor: 18 PA.CONS.STAT.ANN. 6318
Sexual Exploitation of Children: 18 PA.CONS.STAT.ANN. 6320 Sexual Exploitation of Children: 18 PA.CONS.STAT.ANN. 6320
Indecent Assault: 18 PA.CONS.STAT.ANN. 3126(a)(2), (3),(4),(5),(6) or (8) Indecent Assault: 18 PA.CONS.STAT.ANN. 3126(a)(2), (3),(4),(5),(6) or (8)
Sex Trafficking of Children by Force, Fraud, or Coercion: 18 U.S.C. 1591 Sex Trafficking of Children by Force, Fraud, or Coercion: 18 U.S.C. 1591
Sexual Abuse of a Minor or Ward: 18 U.S.C. 2243 Sexual Abuse of a Minor or Ward: 18 U.S.C. 2243
Abusive Sexual Contact Victim 13 Years Old But Under 18 Years: 18 U.S.C. 2244 Abusive Sexual Contact Victim 13 Years Old But Under 18 Years: 18 U.S.C. 2244
Sexual Exploitation of Children: 18 U.S.C. 2251 Sexual Exploitation of Children: 18 U.S.C. 2251
Selling or Buying of Children: 18 U.S.C. 2251A Selling or Buying of Children: 18 U.S.C. 2251A
Production of Sexually Explicit Depictions of Minor for Importation to U.S.: 18 U.S.C. Production of Sexually Explicit Depictions of Minor for Importation to U.S.: 18 U.S.C.
2260 2260
Tier III Sexual Offenses Tier III Sexual Offenses

Lifetime Registration Period Lifetime Registration Period
thereof: thereof:
Kidnapping: 18 PA.CONS.STAT.ANN. 2901(a.1) Kidnapping: 18 PA.CONS.STAT.ANN. 2901(a.1)

Rape: 18 PA.CONS.STAT.ANN. 3121 Rape: 18 PA.CONS.STAT.ANN. 3121
Statutory Sexual Assault: 18 PA.CONS.STAT.ANN. 3122.1(b) Statutory Sexual Assault: 18 PA.CONS.STAT.ANN. 3122.1(b)
Involuntary Deviate Sexual Intercourse: 18 PA.CONS.STAT.ANN. 3123 Involuntary Deviate Sexual Intercourse: 18 PA.CONS.STAT.ANN. 3123
Sexual Assault: 18 PA.CONS.STAT.ANN. 3124.1 Sexual Assault: 18 PA.CONS.STAT.ANN. 3124.1
Institutional Sexual Assault: 18 PA.CONS.STAT.ANN. 3124.2(a.1) Institutional Sexual Assault: 18 PA.CONS.STAT.ANN. 3124.2(a.1)
Aggravated Indecent Assault: 18 PA.CONS.STAT.ANN. 3125 Aggravated Indecent Assault: 18 PA.CONS.STAT.ANN. 3125
Indecent Assault when Complainant is Less than 13 Years Old: 18 PA.CONS.STAT. Indecent Assault when Complainant is Less than 13 Years Old: 18 PA.CONS.STAT.
ANN. 3126(a)(7) ANN. 3126(a)(7)
Incest: 18 PA.CONS.STAT.ANN. 4302(b) Incest: 18 PA.CONS.STAT.ANN. 4302(b)
Aggravated Sexual Abuse: 18 U.S.C. 2241 Aggravated Sexual Abuse: 18 U.S.C. 2241
Sexual Abuse: 18 U.S.C. 2242 Sexual Abuse: 18 U.S.C. 2242
Abusive Sexual Contact When Victim is Less than 13 Years of Age: 18 U.S.C. 2244 Abusive Sexual Contact When Victim is Less than 13 Years of Age: 18 U.S.C. 2244

Chapter 8 Chapter 8
EXPERT AND EXPERT AND

SCIENTIFIC SCIENTIFIC
EVIDENCE EVIDENCE
Expert and Scientific Evidence Expert and Scientific Evidence
Chapter Eight Table of Contents Chapter Eight Table of Contents

8.1 CHAPTER OVERVIEW ............................................................................................................... 3 8.1 CHAPTER OVERVIEW ............................................................................................................... 3
8.2 EVIDENCE REGARDING VICTIMS IN SEXUAL ASSAULT CASES .................... 3 8.2 EVIDENCE REGARDING VICTIMS IN SEXUAL ASSAULT CASES .................... 3
A. Evidence Regarding Condition of Victims ............................................................... 3 A. Evidence Regarding Condition of Victims ............................................................... 3
B. Specific Types of Victim Responses and Victim Behaviors.............................. 5 B. Specific Types of Victim Responses and Victim Behaviors.............................. 5
1. Scope .................................................................................................................................. 7 1. Scope .................................................................................................................................. 7
2. Qualifications of Experts............................................................................................ 7 2. Qualifications of Experts............................................................................................ 7
3. Permissible Opinions and Testimony................................................................... 8 3. Permissible Opinions and Testimony................................................................... 8
(a) Prohibition on Opinion Regarding Credibility............................. 8 (a) Prohibition on Opinion Regarding Credibility............................. 8
8.3 EXPERT TESTIMONY IN SEXUAL ASSAULT CASES ............................................... 8 8.3 EXPERT TESTIMONY IN SEXUAL ASSAULT CASES ............................................... 8
A. General Requirements for Admissibility of Expert Testimony ...................... 8 A. General Requirements for Admissibility of Expert Testimony ...................... 8
1. The Frye Standard ........................................................................................................ 9 1. The Frye Standard ........................................................................................................ 9
2. Qualifications of Experts..........................................................................................11 2. Qualifications of Experts..........................................................................................11
3. Form of Expert Testimony.......................................................................................11 3. Form of Expert Testimony.......................................................................................11
4. Underlying Basis of Expert Opinion....................................................................11 4. Underlying Basis of Expert Opinion....................................................................11
(a) Jury Instruction...........................................................................................13 (a) Jury Instruction...........................................................................................13
5. Expert Opinion Regarding Credibility................................................................13 5. Expert Opinion Regarding Credibility................................................................13
6. Appellate Standard of Review ...............................................................................14 6. Appellate Standard of Review ...............................................................................14
B. Expert Medical Testimony ...........................................................................................15 B. Expert Medical Testimony ...........................................................................................15
1. Expert Testimony by Physicians ...........................................................................15 1. Expert Testimony by Physicians ...........................................................................15
2. Sexual Assault Nurse Examiners ..........................................................................17 2. Sexual Assault Nurse Examiners ..........................................................................17
C. Expert Mental Health Testimony ..............................................................................18 C. Expert Mental Health Testimony ..............................................................................18
1. Conduct or Behavior of Victims ............................................................................18 1. Conduct or Behavior of Victims ............................................................................18
2. Physical or Psychological Trauma Suffered by Victim ................................19 2. Physical or Psychological Trauma Suffered by Victim ................................19
8.4 RAPE TRAUMA SYNDROME ...............................................................................................19 8.4 RAPE TRAUMA SYNDROME ...............................................................................................19
8.5 DNA .................................................................................................................................................20 8.5 DNA .................................................................................................................................................20
A. Background Information Regarding DNA .............................................................21 A. Background Information Regarding DNA .............................................................21
1. Types of DNA Tests.....................................................................................................22 1. Types of DNA Tests.....................................................................................................22
2. Statistical Assessment Following Testing.........................................................24 2. Statistical Assessment Following Testing.........................................................24
B. Admissibility of DNA Evidence ..................................................................................25 B. Admissibility of DNA Evidence ..................................................................................25
C. DNA Detection of Sexual and Violent Offenders Act .........................................26 C. DNA Detection of Sexual and Violent Offenders Act .........................................26
D. Post conviction Forensic DNA Testing ....................................................................28 D. Post conviction Forensic DNA Testing ....................................................................28
1. Timeliness of Motion .................................................................................................29 1. Timeliness of Motion .................................................................................................29
2. Requirements to Obtain DNA Testing ................................................................29 2. Requirements to Obtain DNA Testing ................................................................29
3. Standard of Review ....................................................................................................30 3. Standard of Review ....................................................................................................30
4. Final and Appealable Order....................................................................................30 4. Final and Appealable Order....................................................................................30
8.6 BITE MARK EVIDENCE ..........................................................................................................31 8.6 BITE MARK EVIDENCE ..........................................................................................................31
8.7 HAIR SAMPLE ANALYSIS ......................................................................................................32 8.7 HAIR SAMPLE ANALYSIS ......................................................................................................32
8.8 BLOOD TYPING EVIDENCE .................................................................................................34 8.8 BLOOD TYPING EVIDENCE .................................................................................................34
8.9 FORENSIC SEXUAL ASSAULT EVIDENCE COLLECTION....................................35 8.9 FORENSIC SEXUAL ASSAULT EVIDENCE COLLECTION....................................35
8.10 EXPERT TESTIMONY ON DEFENSE CLAIM OF FALSE CONFESSION .....37 8.10 EXPERT TESTIMONY ON DEFENSE CLAIM OF FALSE CONFESSION .....37
8.11 EXPERT TESTIMONY ON ISSUE OF EYEWITNESS IDENTIFICATION ...39 8.11 EXPERT TESTIMONY ON ISSUE OF EYEWITNESS IDENTIFICATION ...39
Chapter Eight Chapter Eight

This chapter provides a general overview of various evidentiary issues that This chapter provides a general overview of various evidentiary issues that
commonly arise in sexual assault cases and the interplay of Pennsylvania law. commonly arise in sexual assault cases and the interplay of Pennsylvania law.
In section 8.2, the conduct or behavior of a victim of a sexual assault following In section 8.2, the conduct or behavior of a victim of a sexual assault following
the abusive incident, and its bearing on credibility, are discussed, as well as evidence the abusive incident, and its bearing on credibility, are discussed, as well as evidence
which may be admitted to address discrepancies between the way a victim reacts and which may be admitted to address discrepancies between the way a victim reacts and
the typical expectation of a jury. the typical expectation of a jury.
Following a general discussion in section 8.3 on the presentation of other types Following a general discussion in section 8.3 on the presentation of other types
of expert testimony in sexual assault cases, the chapter focuses on the following: of expert testimony in sexual assault cases, the chapter focuses on the following:
Rape Trauma Syndrome, section 8.4; Rape Trauma Syndrome, section 8.4;
DNA, section 8.5; DNA, section 8.5;
Bite Mark Evidence, section 8.6; Bite Mark Evidence, section 8.6;
Hair Sample Analysis, section 8.7; Hair Sample Analysis, section 8.7;
Blood Typing Evidence, section 8.8; and Blood Typing Evidence, section 8.8; and
Evidence Obtained from a Rape Kit Exam, section 8.9. Evidence Obtained from a Rape Kit Exam, section 8.9.
Two recent Pennsylvania Supreme Court cases form the basis for sections 8.10 Two recent Pennsylvania Supreme Court cases form the basis for sections 8.10
and 8.11. Section 8.10 contains a discussion on the recent decision that expert testimony and 8.11. Section 8.10 contains a discussion on the recent decision that expert testimony
on a defense claim of a false confession is not admissible. Section 8.11 summarizes the on a defense claim of a false confession is not admissible. Section 8.11 summarizes the
recent decision which now holds that expert testimony on the issue of the reliability, or recent decision which now holds that expert testimony on the issue of the reliability, or
more precisely, the lack of reliability of eyewitness identification, is now admissible at more precisely, the lack of reliability of eyewitness identification, is now admissible at
the discretion of the trial court. the discretion of the trial court.
8.2 EVIDENCE REGARDING VICTIMS IN SEXUAL ASSAULT CASES 8.2 EVIDENCE REGARDING VICTIMS IN SEXUAL ASSAULT CASES
A. Evidence Regarding Condition of Victims A. Evidence Regarding Condition of Victims
In general, expert testimony cannot be used to bolster or impeach the credibility In general, expert testimony cannot be used to bolster or impeach the credibility
of a witness. Whether the experts opinion is offered to attack or to enhance, it assumes of a witness. Whether the experts opinion is offered to attack or to enhance, it assumes
the same impact an unwarranted appearance of authority in the subject of credibility the same impact an unwarranted appearance of authority in the subject of credibility
which is the jurys basic function to assess. Commonwealth v. Selenski, 18 A.3d 1229, which is the jurys basic function to assess. Commonwealth v. Selenski, 18 A.3d 1229,
1232 (Pa. Super. 2011). Because the truthfulness of a witness is solely within the province 1232 (Pa. Super. 2011). Because the truthfulness of a witness is solely within the province
of the jury, jurors must rely on their ordinary experiences of life, common knowledge of the jury, jurors must rely on their ordinary experiences of life, common knowledge
of the tendencies of human behavior, and observations of the witness character and of the tendencies of human behavior, and observations of the witness character and
demeanor. Commonwealth v. Counterman, 553 Pa. 370, 719 A.282 (1998), cert. denied, demeanor. Commonwealth v. Counterman, 553 Pa. 370, 719 A.282 (1998), cert. denied,
However, when the expert opinion is proffered to explain the physical condition However, when the expert opinion is proffered to explain the physical condition
of a victim of a sexual assault and whether it is consistent with the allegation of a sexual of a victim of a sexual assault and whether it is consistent with the allegation of a sexual
assault, it is admissible: assault, it is admissible:
[T]estimony regarding conduct or behavior of victims of sexual [T]estimony regarding conduct or behavior of victims of sexual
assaults is not admissible since it tends to invade the jurys assaults is not admissible since it tends to invade the jurys
function of evaluating witness credibility, whereas testimony function of evaluating witness credibility, whereas testimony
regarding physical facts is admissible. The court analogized to regarding physical facts is admissible. The court analogized to
Commonwealth v. Hernandez, 420 Pa.Super. 1, 615 A.2d 1337 Commonwealth v. Hernandez, 420 Pa.Super. 1, 615 A.2d 1337
(1992), in which the Superior Court found that a pediatrician (1992), in which the Superior Court found that a pediatrician
could testify that the physical facts observed and reported by could testify that the physical facts observed and reported by
the treating physician were consistent with the allegation of anal the treating physician were consistent with the allegation of anal
sodomy. Id. at 1343. Following the reasoning in Hernandez, sodomy. Id. at 1343. Following the reasoning in Hernandez,
the court in Johnson concluded that this subject is appropriate the court in Johnson concluded that this subject is appropriate
for expert testimony because the physical condition of a for expert testimony because the physical condition of a
sexual assault victim is not a matter that is typically within the sexual assault victim is not a matter that is typically within the
knowledge of average jurors. The court further found that the knowledge of average jurors. The court further found that the
expert testimony did not encroach upon the jurys province of expert testimony did not encroach upon the jurys province of
determining witness credibility since the testimony pertained to determining witness credibility since the testimony pertained to
objective medical facts, rather than explanations of behavioral objective medical facts, rather than explanations of behavioral
patterns.1 patterns.1
Commonwealth v. Minerd, 562 Pa. 46, 52-53, 753 A.2d 225, 228 - 229 (2000) (some Commonwealth v. Minerd, 562 Pa. 46, 52-53, 753 A.2d 225, 228 - 229 (2000) (some
citations omitted). Minerd and this line of cases address expert testimony which deals citations omitted). Minerd and this line of cases address expert testimony which deals
explicitly with the physical condition of the alleged victim, i.e., tears, bruising, or the lack explicitly with the physical condition of the alleged victim, i.e., tears, bruising, or the lack
thereof. thereof.
The following appellate decisions address the admissibility of testimony The following appellate decisions address the admissibility of testimony
regarding the condition of victims of sexual assaults. regarding the condition of victims of sexual assaults.
Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225 (2000) Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225 (2000)
In Minerd, two young girls under the age of 10 years old testified that their In Minerd, two young girls under the age of 10 years old testified that their
mothers boyfriend sexually abused them, by way of anal intercourse, for a number mothers boyfriend sexually abused them, by way of anal intercourse, for a number
of years. When the girls became concerned over contracting AIDS, they revealed of years. When the girls became concerned over contracting AIDS, they revealed
the abuse. At trial, the prosecution offered the expert testimony of a medical doctor the abuse. At trial, the prosecution offered the expert testimony of a medical doctor
specialized in obgyn who had examined the girls and found no evidence of physical specialized in obgyn who had examined the girls and found no evidence of physical
trauma to the girls genital or anal areas. The doctor was also offered to testify that trauma to the girls genital or anal areas. The doctor was also offered to testify that
because of the nature of the muscle that closes the anus, there would have been an because of the nature of the muscle that closes the anus, there would have been an
1 If the expert opinion is based upon an examination which does not take place immediately after the alleged sexual assault, or even if 1 If the expert opinion is based upon an examination which does not take place immediately after the alleged sexual assault, or even if
it is a number of years later, its admissibility is still up to the trial court. The passage of time does not render relevant expert testimony it is a number of years later, its admissibility is still up to the trial court. The passage of time does not render relevant expert testimony
inadmissible; it is a factor for the jury to decide in determining the weight to accord the experts testimony. See Commonwealth v. inadmissible; it is a factor for the jury to decide in determining the weight to accord the experts testimony. See Commonwealth v.
Minerd, 562 Pa. 46, 56, 753 A.2d 225, 230-131 (2000). Minerd, 562 Pa. 46, 56, 753 A.2d 225, 230-131 (2000).
adequate time between the abuse incidents and the examination for any damage to adequate time between the abuse incidents and the examination for any damage to
have healed. On appeal, the defense argued that the testimony improperly bolstered have healed. On appeal, the defense argued that the testimony improperly bolstered
the victims credibility. The Supreme Court ruled that the doctors testimony was the victims credibility. The Supreme Court ruled that the doctors testimony was
limited to her physical findings and therefore did not impermissibly bolster the limited to her physical findings and therefore did not impermissibly bolster the
childrens credibility. childrens credibility.
Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131 (2007) Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131 (2007)
In Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131 (2007), the In Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131 (2007), the
Pennsylvania Supreme Court acknowledged that a delay in reporting sexual abuse Pennsylvania Supreme Court acknowledged that a delay in reporting sexual abuse
can affect the jurys evaluation of the victims credibility. In recognizing that under can affect the jurys evaluation of the victims credibility. In recognizing that under
certain circumstances a victims response to an abusive incident might run counter certain circumstances a victims response to an abusive incident might run counter
to that which a typical juror might expect, the Supreme Court stated: to that which a typical juror might expect, the Supreme Court stated:
Revealing the circumstances surrounding an incident of sexual Revealing the circumstances surrounding an incident of sexual
abuse, and the reasons for the delay, enables the factfinder to abuse, and the reasons for the delay, enables the factfinder to
more accurately assess the victims credibility. more accurately assess the victims credibility.
Dillon, 592 Pa. at 363, 925 A.2d at 139. Therefore, in Dillon, the Court permitted the Dillon, 592 Pa. at 363, 925 A.2d at 139. Therefore, in Dillon, the Court permitted the
Commonwealth to introduce, in its case-in-chief, evidence that the alleged perpetrator Commonwealth to introduce, in its case-in-chief, evidence that the alleged perpetrator
physically abused the child-victims mother and brother, causing her to fear making a physically abused the child-victims mother and brother, causing her to fear making a
prompt report. Indeed, multiple courts have recognized the importance of allowing prompt report. Indeed, multiple courts have recognized the importance of allowing
the prosecution to fully explain incidents of physical abuse causing a complaint of the prosecution to fully explain incidents of physical abuse causing a complaint of
sexual abuse to be delayed. Id., 592 Pa. at 364, 925 A.2d at 139. sexual abuse to be delayed. Id., 592 Pa. at 364, 925 A.2d at 139.
Commonwealth v. Mendez, 74 A.3d 256 (Pa. Super. 2013), appeal denied, --- Pa. Commonwealth v. Mendez, 74 A.3d 256 (Pa. Super. 2013), appeal denied, --- Pa.
---, 87 A.3d 319 (2014) ---, 87 A.3d 319 (2014)
In Commonwealth v. Mendez, 74 A.3d 256 (Pa. Super. 2013), the defendant In Commonwealth v. Mendez, 74 A.3d 256 (Pa. Super. 2013), the defendant
was charged with numerous sexual offenses related to his abuse of a female child, was charged with numerous sexual offenses related to his abuse of a female child,
beginning when the child was about 12 years old and continuing for seven years. beginning when the child was about 12 years old and continuing for seven years.
Shortly after the victim turned 18 years old, she gave birth to a baby. Prior to the birth, Shortly after the victim turned 18 years old, she gave birth to a baby. Prior to the birth,
she was not aware that she was pregnant. In its case-in-chief, the Commonwealth she was not aware that she was pregnant. In its case-in-chief, the Commonwealth
wished to present expert testimony to explain how the victim could have given birth wished to present expert testimony to explain how the victim could have given birth
without ever knowing that she was pregnant. A medical doctor was prepared to without ever knowing that she was pregnant. A medical doctor was prepared to
provide the reasons a woman may not be aware that she is pregnant until she gives provide the reasons a woman may not be aware that she is pregnant until she gives
birth. birth.
The trial court would not allow the testimony unless the issue of the unknown The trial court would not allow the testimony unless the issue of the unknown
pregnancy was the subject of cross-examination of the victim, i.e., the defense had to pregnancy was the subject of cross-examination of the victim, i.e., the defense had to
first raise the issue at trial first raise the issue at trial
On appeal, the Commonwealth argued that the medical expert would On appeal, the Commonwealth argued that the medical expert would
provide critical testimony regarding the victims credibility. The Superior Court first provide critical testimony regarding the victims credibility. The Superior Court first
acknowledged the well settled rule that expert testimony cannot be used to bolster acknowledged the well settled rule that expert testimony cannot be used to bolster
the credibility of a witness. However, in citing to Commonwealth v. Minerd, 562 the credibility of a witness. However, in citing to Commonwealth v. Minerd, 562
Pa. 46, 753 A.2d 225 (2000), the Superior Court found the testimony relevant and Pa. 46, 753 A.2d 225 (2000), the Superior Court found the testimony relevant and
admissible because it addressed how a young woman can be pregnant and not be admissible because it addressed how a young woman can be pregnant and not be
aware she is pregnant. Therefore, because the medical expert would not be testifying aware she is pregnant. Therefore, because the medical expert would not be testifying
about the victims conduct or behavior, but instead would be explaining the physical about the victims conduct or behavior, but instead would be explaining the physical
condition of a sexual assault victim it was relevant and admissible. Mendez, 74 A.3d condition of a sexual assault victim it was relevant and admissible. Mendez, 74 A.3d
at 262-263. at 262-263.
B. Specific Types of Victim Responses and Victim Behaviors2 B. Specific Types of Victim Responses and Victim Behaviors2
With the passage of 42 Pa.Cons.Stat.Ann. 5920, experts will be able to testify, With the passage of 42 Pa.Cons.Stat.Ann. 5920, experts will be able to testify,
in the prosecutions case-in-chief, about specific types of victim responses and victim in the prosecutions case-in-chief, about specific types of victim responses and victim
behaviors in sexual assault cases, although they still will not be permitted to testify as to behaviors in sexual assault cases, although they still will not be permitted to testify as to
a particular victims or witnesss credibility. This law is not restricted to the prosecutions a particular victims or witnesss credibility. This law is not restricted to the prosecutions
case, however, and the defense has an equal opportunity to qualify an expert under this case, however, and the defense has an equal opportunity to qualify an expert under this
law, and present similar testimony on the defense side.3 law, and present similar testimony on the defense side.3
Although this law is available to both the Commonwealth and the defense, it was Although this law is available to both the Commonwealth and the defense, it was
originally adopted to address a jury perception problem when a victim responds to a originally adopted to address a jury perception problem when a victim responds to a
sexual assault in a way which runs contrary to that which a typical juror would expect. sexual assault in a way which runs contrary to that which a typical juror would expect.
Section 5920 provides that properly qualified experts can testify as to facts and opinions Section 5920 provides that properly qualified experts can testify as to facts and opinions
regarding specific types of victim responses and behaviors in crimes of sexual violence, regarding specific types of victim responses and behaviors in crimes of sexual violence,
in order to explain a reaction or response, which might seem unusual or strange to a in order to explain a reaction or response, which might seem unusual or strange to a
juror, and therefore create credibility issues. juror, and therefore create credibility issues.
This section provides: This section provides:

Expert testimony in certain criminal proceedings Expert testimony in certain criminal proceedings
(a) Scope.--This section applies to all of the following: (a) Scope.--This section applies to all of the following:
(1) A criminal proceeding for an offense for which (1) A criminal proceeding for an offense for which
registration is required under Subchapter H of Chapter registration is required under Subchapter H of Chapter
97 (relating to registration of sexual offenders). 97 (relating to registration of sexual offenders).
(2) A criminal proceeding for an offense under 18 Pa.C.S. (2) A criminal proceeding for an offense under 18 Pa.C.S.
Ch. 31 (relating to sexual offenses). Ch. 31 (relating to sexual offenses).
2 For additional detailed discussion, see CHAPTER 7: TRIAL ISSUES, Section 7.4(F) Expert Testimony-Victim Responses and 2 For additional detailed discussion, see CHAPTER 7: TRIAL ISSUES, Section 7.4(F) Expert Testimony-Victim Responses and
Behaviors. Behaviors.
3 This statute has been challenged on constitutional grounds. In Commonwealth v. Olivo, No. CP-06-CR-004662-2012 (C.P. Berks 3 This statute has been challenged on constitutional grounds. In Commonwealth v. Olivo, No. CP-06-CR-004662-2012 (C.P. Berks
August 27, 2013), the Court of Common Pleas of Berks County ruled that section 5920 represents an impermissible attempt at procedural August 27, 2013), the Court of Common Pleas of Berks County ruled that section 5920 represents an impermissible attempt at procedural
rule making by the legislature, and suspended the statutes application. The trial court referred to Article V, 10 of the Pennsylvania rule making by the legislature, and suspended the statutes application. The trial court referred to Article V, 10 of the Pennsylvania
Constitution to find that the statue violated the separation of powers doctrine in that admission of evidence is solely within the province Constitution to find that the statue violated the separation of powers doctrine in that admission of evidence is solely within the province
of the Pennsylvania Supreme Court. The Olivo decision was appealed by the Commonwealth to the Pennsylvania Superior Court, which of the Pennsylvania Supreme Court. The Olivo decision was appealed by the Commonwealth to the Pennsylvania Superior Court, which
docketed the appeal to No. 1741 MDA 2013. The Superior Court has ordered the matter transferred to the Pennsylvania Supreme Court docketed the appeal to No. 1741 MDA 2013. The Superior Court has ordered the matter transferred to the Pennsylvania Supreme Court
in light of the constitutional issues involved. As of the writing of this edition of the Benchbook, the Supreme Court has not yet accepted in light of the constitutional issues involved. As of the writing of this edition of the Benchbook, the Supreme Court has not yet accepted
the case for review. the case for review.
(b) Qualifications and use of experts.-- (b) Qualifications and use of experts.--
(1) In a criminal proceeding subject to this section, a (1) In a criminal proceeding subject to this section, a
witness may be qualified by the court as an expert if witness may be qualified by the court as an expert if
the witness has specialized knowledge beyond that the witness has specialized knowledge beyond that
possessed by the average layperson based on the possessed by the average layperson based on the
witnesss experience with, or specialized training or witnesss experience with, or specialized training or
education in, criminal justice, behavioral sciences or education in, criminal justice, behavioral sciences or
victim services issues, related to sexual violence, that will victim services issues, related to sexual violence, that will
assist the trier of fact in understanding the dynamics of assist the trier of fact in understanding the dynamics of
sexual violence, victim responses to sexual violence and sexual violence, victim responses to sexual violence and
the impact of sexual violence on victims during and after the impact of sexual violence on victims during and after
being assaulted. being assaulted.
(2) If qualified as an expert, the witness may testify to facts (2) If qualified as an expert, the witness may testify to facts
and opinions regarding specific types of victim responses and opinions regarding specific types of victim responses
and victim behaviors. and victim behaviors.
(3) The witnesss opinion regarding the credibility of any (3) The witnesss opinion regarding the credibility of any
other witness, including the victim, shall not be admissible. other witness, including the victim, shall not be admissible.
(4) A witness qualified by the court as an expert under (4) A witness qualified by the court as an expert under
this section may be called by the attorney for the this section may be called by the attorney for the
Commonwealth or the defendant to provide the expert Commonwealth or the defendant to provide the expert
testimony.4 testimony.4
1. Scope 1. Scope
This section is applicable in prosecutions which fall under one of two This section is applicable in prosecutions which fall under one of two
classifications: classifications:
(1) An offense for which registration with the Pennsylvania State Police (1) An offense for which registration with the Pennsylvania State Police
is required. These offenses are classified in a three-tiered system. is required. These offenses are classified in a three-tiered system.
Please see Addendum 2 to Chapter Six for a listing of all offenses Please see Addendum 2 to Chapter Six for a listing of all offenses
which required registration under SORNA, 42 Pa.Cons.Stat.Ann. which required registration under SORNA, 42 Pa.Cons.Stat.Ann.
9799.14. 9799.14.
(2) A criminal proceeding under Chapter 31, Sexual Offenses, 18 Pa.Cons. (2) A criminal proceeding under Chapter 31, Sexual Offenses, 18 Pa.Cons.
Stat.Ann. 3121 3129. Stat.Ann. 3121 3129.

Statutory Sexual Assault, 18 Pa.Cons.Stat.Ann. 3122.1 Statutory Sexual Assault, 18 Pa.Cons.Stat.Ann. 3122.1
Involuntary Deviate Sexual Intercourse, 18 Pa.Cons.Stat.Ann. Involuntary Deviate Sexual Intercourse, 18 Pa.Cons.Stat.Ann.
3123 3123
Sexual Assault, 18 Pa.Cons.Stat.Ann. 3124.1 Sexual Assault, 18 Pa.Cons.Stat.Ann. 3124.1

Institutional Sexual Assault, 18 Pa.Cons.Stat.Ann. 3124.2 Institutional Sexual Assault, 18 Pa.Cons.Stat.Ann. 3124.2
Aggravated Indecent Assault, 18 Pa.Cons.Stat.Ann. 3125 Aggravated Indecent Assault, 18 Pa.Cons.Stat.Ann. 3125
Indecent Assault, 18 Pa.Cons.Stat.Ann. 3126 Indecent Assault, 18 Pa.Cons.Stat.Ann. 3126
Indecent Exposure, 18 Pa.Cons.Stat.Ann. 3127 Indecent Exposure, 18 Pa.Cons.Stat.Ann. 3127
Sexual Intercourse with Animal, 3129 Sexual Intercourse with Animal, 3129
Sexual Assault by Sports Official, Volunteer or Employee, 3214.3 Sexual Assault by Sports Official, Volunteer or Employee, 3214.3
2. Qualifications of Expert 2. Qualifications of Expert
To be qualified under this section, the witness may be qualified by the To be qualified under this section, the witness may be qualified by the
court as an expert if the witness: court as an expert if the witness:
Has specialized knowledge beyond that possessed by the average Has specialized knowledge beyond that possessed by the average
layperson layperson
The specialized knowledge is based on the witnesss experience with, or The specialized knowledge is based on the witnesss experience with, or
specialized training or education related to sexual violence in: specialized training or education related to sexual violence in:
criminal justice, criminal justice,

behavioral sciences, or behavioral sciences, or
victim services issues. victim services issues.
Furthermore, the court must be satisfied that the testimony of the witness Furthermore, the court must be satisfied that the testimony of the witness
will assist the trier of fact in understanding: will assist the trier of fact in understanding:

3. Permissible Opinions and Testimony 3. Permissible Opinions and Testimony
The expert may testify to facts and opinions regarding specific types of The expert may testify to facts and opinions regarding specific types of
victim responses to sexual assault and victim behaviors following sexual assault. victim responses to sexual assault and victim behaviors following sexual assault.
Furthermore, the testimony of the expert witness may assist the trier of Furthermore, the testimony of the expert witness may assist the trier of
fact in understanding: fact in understanding:

(a) Prohibition on Opinion Regarding Credibility (a) Prohibition on Opinion Regarding Credibility
Section 5920 specifically prohibits the witness from opining regarding Section 5920 specifically prohibits the witness from opining regarding
the credibility of any witness, including the victim. the credibility of any witness, including the victim.
(b) Availability of Witness (b) Availability of Witness
A witness properly qualified under this section may be called by the A witness properly qualified under this section may be called by the
prosecution or the defense. prosecution or the defense.
8.3 EXPERT TESTIMONY IN SEXUAL ASSAULT CASES 8.3 EXPERT TESTIMONY IN SEXUAL ASSAULT CASES
This section discusses issues regarding the admission of expert testimony in This section discusses issues regarding the admission of expert testimony in
sexual assault cases, including the general requirements for admissibility and relevancy. sexual assault cases, including the general requirements for admissibility and relevancy.
It also discusses expert medical testimony and expert mental health testimony. It also discusses expert medical testimony and expert mental health testimony.
A. General Requirements for Admissibility of Expert Testimony A. General Requirements for Admissibility of Expert Testimony
The purpose of expert testimony is to assist the factfinder in grasping complex The purpose of expert testimony is to assist the factfinder in grasping complex
issues not within the knowledge, intelligence, and experience of the ordinary layman. issues not within the knowledge, intelligence, and experience of the ordinary layman.
Where a witness has a reasonable pretension to specialized knowledge on a subject Where a witness has a reasonable pretension to specialized knowledge on a subject
matter under investigation, the witness may testify as an expert and the weight to be matter under investigation, the witness may testify as an expert and the weight to be
given such testimony is for the jury to decide. Commonwealth v. Page, 59 A.3d 1118, given such testimony is for the jury to decide. Commonwealth v. Page, 59 A.3d 1118,
1135 (Pa. Super. 2013), appeal denied, --- Pa. ---, 80 A.3d 776 (2013).5 Conversely, expert 1135 (Pa. Super. 2013), appeal denied, --- Pa. ---, 80 A.3d 776 (2013).5 Conversely, expert
testimony is not admissible where the issue involves a matter of common knowledge. testimony is not admissible where the issue involves a matter of common knowledge.
Commonwealth v. Counterman, 553 Pa. 370, 719 A.282 (1998), cert. denied, 528 U.S. Commonwealth v. Counterman, 553 Pa. 370, 719 A.282 (1998), cert. denied, 528 U.S.
836, 120 S.Ct. 97, 145 L.Ed.2d 82 (1999). 836, 120 S.Ct. 97, 145 L.Ed.2d 82 (1999).
Furthermore, the admission of expert testimony is a matter for the discretion of Furthermore, the admission of expert testimony is a matter for the discretion of
the trial court, and should not be disturbed unless there is a clear abuse of discretion. the trial court, and should not be disturbed unless there is a clear abuse of discretion.
Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013), appeal denied, --- Pa. ---, Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013), appeal denied, --- Pa. ---,
80 A.3d 775 (2013). 80 A.3d 775 (2013).
The admissibility of an expert opinion is governed by Rule 702 of the Pennsylvania The admissibility of an expert opinion is governed by Rule 702 of the Pennsylvania
Rules of Evidence. Rules of Evidence.
Article VII. Opinions and Expert Testimony Article VII. Opinions and Expert Testimony
Rule 702. Testimony by Expert Witnesses Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an experience, training, or education may testify in the form of an
opinion or otherwise if: opinion or otherwise if:
(a) the experts scientific, technical, or other specialized (a) the experts scientific, technical, or other specialized
knowledge is beyond that possessed by the average knowledge is beyond that possessed by the average
layperson; layperson;
(b) the experts scientific, technical, or other specialized (b) the experts scientific, technical, or other specialized
5 In Commonwealth v. Page, 59 A.3d at 1135-1136, the proposed medical expert testified that she worked for the medical examiners 5 In Commonwealth v. Page, 59 A.3d at 1135-1136, the proposed medical expert testified that she worked for the medical examiners
office and was consulted because there are always concerns about child sexual abuse because of specific techniques which the doctor office and was consulted because there are always concerns about child sexual abuse because of specific techniques which the doctor
uses in those types of cases. The Superior Court found no abuse of discretion in the trial courts admission of her testimony as an expert. uses in those types of cases. The Superior Court found no abuse of discretion in the trial courts admission of her testimony as an expert.
knowledge will help the trier of fact to understand the knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and evidence or to determine a fact in issue; and
(c) the experts methodology is generally accepted in the (c) the experts methodology is generally accepted in the
relevant field.6 relevant field.6
In deciding whether expert testimony is admissible, the trial court must In deciding whether expert testimony is admissible, the trial court must
determine: determine:
(1) whether the subject matter is appropriate for expert testimony; (1) whether the subject matter is appropriate for expert testimony;
(2) whether the testimony will assist the trier of fact to understand the (2) whether the testimony will assist the trier of fact to understand the
evidence or to determine a fact in issue; and evidence or to determine a fact in issue; and
(3) whether the proffered expert is qualified to offer an expert opinion. (3) whether the proffered expert is qualified to offer an expert opinion.
1. The Frye Standard 1. The Frye Standard
In Commonwealth v. Topa, 471 Pa. 223, 231, 369 A.2d 1277, 1282 (1977), In Commonwealth v. Topa, 471 Pa. 223, 231, 369 A.2d 1277, 1282 (1977),
the Pennsylvania Supreme Court adopted the test in Frye v. United States, 293 the Pennsylvania Supreme Court adopted the test in Frye v. United States, 293
F. 1013 (D.C.Cir. 1923) to determine whether novel scientific evidence may be F. 1013 (D.C.Cir. 1923) to determine whether novel scientific evidence may be
admitted in criminal trials. Under Frye, novel scientific evidence is admissible admitted in criminal trials. Under Frye, novel scientific evidence is admissible
only if the methodology that underlies the evidence has general acceptance in only if the methodology that underlies the evidence has general acceptance in
the relevant scientific community.7 the relevant scientific community.7
While the United States Supreme Court has since found that the Frye While the United States Supreme Court has since found that the Frye
test has been superseded by the more permissive Federal Rules of Evidence, see test has been superseded by the more permissive Federal Rules of Evidence, see
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993), Pennsylvania courts are not bound by the Federal Rules 125 L.Ed.2d 469 (1993), Pennsylvania courts are not bound by the Federal Rules
of Evidence, and continue to apply the Frye standard. See Commonwealth v. of Evidence, and continue to apply the Frye standard. See Commonwealth v.
Einhorn, 911 A.2d 960, 974-975 (Pa.Super. 2006), appeal denied, 591 Pa. 723, Einhorn, 911 A.2d 960, 974-975 (Pa.Super. 2006), appeal denied, 591 Pa. 723,
920 A.2d 831 (2007). 920 A.2d 831 (2007).
As stated above, the Pennsylvania Supreme Court has utilized the Frye As stated above, the Pennsylvania Supreme Court has utilized the Frye
standard in criminal cases. Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 standard in criminal cases. Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277
(1977). In Topa, the Supreme Court described an adequate foundation for the (1977). In Topa, the Supreme Court described an adequate foundation for the
admission of scientific evidence: admission of scientific evidence:
Admissibility of the evidence depends upon the general Admissibility of the evidence depends upon the general
acceptance of its validity by those scientists active in the field acceptance of its validity by those scientists active in the field
to which the evidence belongs[.] to which the evidence belongs[.]
Just when a scientific principle or discovery crosses Just when a scientific principle or discovery crosses
the line between the experimental and demonstrable the line between the experimental and demonstrable
6 Pa.R.E. 702. 6 Pa.R.E. 702.
7 See also, Commonwealth v. Hall, 867 A.2d 619, 633 (Pa.Super. 2005), appeal denied, 586 Pa. 756, 895 A.2d 549 (Pa. Mar 07, 2006). 7 See also, Commonwealth v. Hall, 867 A.2d 619, 633 (Pa.Super. 2005), appeal denied, 586 Pa. 756, 895 A.2d 549 (Pa. Mar 07, 2006).
stages is difficult to define. Somewhere in this twilight stages is difficult to define. Somewhere in this twilight
zone the evidential force of the principle must be zone the evidential force of the principle must be
recognized, and while courts will go a long way in recognized, and while courts will go a long way in
admitting expert testimony deduced from a well- admitting expert testimony deduced from a well-
recognized scientific principle or discovery, the thing recognized scientific principle or discovery, the thing
from which the deduction is made must be sufficiently from which the deduction is made must be sufficiently
established to have gained general acceptance in the established to have gained general acceptance in the
particular field in which it belongs. particular field in which it belongs.
Id. at 232, 369 A.2d at 1282, quoting Frye v. United States, 293 F. at 1014 (emphasis Id. at 232, 369 A.2d at 1282, quoting Frye v. United States, 293 F. at 1014 (emphasis
in original). The Supreme Court went further to note that strict application of in original). The Supreme Court went further to note that strict application of
the Frye standard is necessary when scientific proof is offered in a criminal trial the Frye standard is necessary when scientific proof is offered in a criminal trial
to ensure that the defendant is to receive a fair and just trial. Commonwealth to ensure that the defendant is to receive a fair and just trial. Commonwealth
v. Topa, 471 Pa. at 232, 369 A.2d at 1282. See also, Commonwealth v. Apollo, v. Topa, 471 Pa. at 232, 369 A.2d at 1282. See also, Commonwealth v. Apollo,
(1992).8 (1992).8
It should be noted, though, that the Frye standard does not apply every It should be noted, though, that the Frye standard does not apply every
time science enters the courtroom. Folger ex rel. Folger v. Dugan, 876 A.2d time science enters the courtroom. Folger ex rel. Folger v. Dugan, 876 A.2d
1049, 1058 (Pa.Super. 2005), appeal denied, 587 Pa. 695, 897 A.2d 458 (2006).9 1049, 1058 (Pa.Super. 2005), appeal denied, 587 Pa. 695, 897 A.2d 458 (2006).9
Frye does apply, however, where an expert witness employs a novel scientific Frye does apply, however, where an expert witness employs a novel scientific
methodology in reaching his or her conclusion. Trach v. Fellin, 817 A.2d 1102, methodology in reaching his or her conclusion. Trach v. Fellin, 817 A.2d 1102,
1110 (Pa.Super. 2003)(en banc.), appeal denied, 577 Pa. 725, 847 A.2d 1288 1110 (Pa.Super. 2003)(en banc.), appeal denied, 577 Pa. 725, 847 A.2d 1288
(2004); see also, Grady v. Frito Lay, 576 Pa. 546, 554-555, 839 A.2d 1038, 1043- (2004); see also, Grady v. Frito Lay, 576 Pa. 546, 554-555, 839 A.2d 1038, 1043-
1044 (Pa.Super. 2003). 1044 (Pa.Super. 2003).
2. Qualifications of Experts 2. Qualifications of Experts
Whether an expert is qualified to offer an expert opinion is governed by Whether an expert is qualified to offer an expert opinion is governed by
Rule 702 of the Pennsylvania Rules of Evidence. An expert may be qualified to Rule 702 of the Pennsylvania Rules of Evidence. An expert may be qualified to
offer an opinion by knowledge, skill, experience, training or education. Pa.R.E. offer an opinion by knowledge, skill, experience, training or education. Pa.R.E.
702. In Pennsylvania, the standard for qualifications of an expert witness is a 702. In Pennsylvania, the standard for qualifications of an expert witness is a
liberal one. In determining whether a witness is qualified to testify as an expert, liberal one. In determining whether a witness is qualified to testify as an expert,
the trial court judge must determine whether the witness the trial court judge must determine whether the witness
has any reasonable pretension to specialized knowledge on has any reasonable pretension to specialized knowledge on
the subject under investigation. the subject under investigation.
Commonwealth v. Stallworth, 566 Pa. 349, 369, 781 A.2d 110, 121 (2001); Commonwealth v. Stallworth, 566 Pa. 349, 369, 781 A.2d 110, 121 (2001);
Miller v. Brass Rail Tavern, 541 Pa. 474, 480-481, 664 A.2d 525, 528 (1995). Miller v. Brass Rail Tavern, 541 Pa. 474, 480-481, 664 A.2d 525, 528 (1995).
8 As a general rule, the standard of review on appeal of a trial courts evidentiary ruling, including a ruling whether expert scientific 8 As a general rule, the standard of review on appeal of a trial courts evidentiary ruling, including a ruling whether expert scientific
evidence is admissible against a Frye challenge, is limited to determining whether the trial court abused its discretion. Commonwealth evidence is admissible against a Frye challenge, is limited to determining whether the trial court abused its discretion. Commonwealth
v. Dengler, 586 Pa. 54, 65, 890 A.2d 372, 379 (2005). v. Dengler, 586 Pa. 54, 65, 890 A.2d 372, 379 (2005).
9 In Folger v. Dugan, 876 A.2d at 1058, the trial court noted that the methods used by the proposed experts were methods used by 9 In Folger v. Dugan, 876 A.2d at 1058, the trial court noted that the methods used by the proposed experts were methods used by
medical professionals every day and were therefore not a proper subject for a Frye analysis. In affirming, the Superior Court agreed and medical professionals every day and were therefore not a proper subject for a Frye analysis. In affirming, the Superior Court agreed and
referenced that the appellant did not allege that the methodology was novel or junk science thereby eliminating the need for a Frye referenced that the appellant did not allege that the methodology was novel or junk science thereby eliminating the need for a Frye
hearing. Id. hearing. Id.
If he does, he may testify and the weight to be given to such testimony is for the If he does, he may testify and the weight to be given to such testimony is for the
trier of fact to determine. Id. trier of fact to determine. Id.
3. Form of Expert Testimony 3. Form of Expert Testimony
According to Rule 702, an expert may testify in the form of an opinion or According to Rule 702, an expert may testify in the form of an opinion or
otherwise. Much of the literature assumes that experts testify only in the form of otherwise. Much of the literature assumes that experts testify only in the form of
an opinion. The language or otherwise reflects the fact that experts frequently an opinion. The language or otherwise reflects the fact that experts frequently
are called upon to educate the trier of fact about the scientific or technical are called upon to educate the trier of fact about the scientific or technical
principles relevant to the case. Pa.R.E. 702, comment. principles relevant to the case. Pa.R.E. 702, comment.
4. Underlying Basis of Expert Opinion 4. Underlying Basis of Expert Opinion
Pennsylvania Rule of Evidence 705 requires an expert to state the facts Pennsylvania Rule of Evidence 705 requires an expert to state the facts
or data on which the opinion is based. Pa.R.E. 705. Furthermore, Rule 703 or data on which the opinion is based. Pa.R.E. 705. Furthermore, Rule 703
provides that so long as the facts and data the expert relies upon are of a kind provides that so long as the facts and data the expert relies upon are of a kind
reasonably relied upon by experts in that particular field of study, they need not reasonably relied upon by experts in that particular field of study, they need not
be admissible for the opinion to be admitted. Pa.R.E. 703. In interpreting these be admissible for the opinion to be admitted. Pa.R.E. 703. In interpreting these
evidentiary rules, the Superior Court has recently stated: evidentiary rules, the Superior Court has recently stated:
It is well-established that an expert may express an opinion It is well-established that an expert may express an opinion
which is based on material not in evidence, including other which is based on material not in evidence, including other
expert opinion, where such material is of a type customarily expert opinion, where such material is of a type customarily
relied on by experts in his or her profession. Such material relied on by experts in his or her profession. Such material
may be disclosed at trial even though it might otherwise be may be disclosed at trial even though it might otherwise be
hearsay ... Such hearsay is admissible because the experts hearsay ... Such hearsay is admissible because the experts
reliance on the material provides its own indication of the reliance on the material provides its own indication of the
materials trustworthiness: The fact that experts reasonably materials trustworthiness: The fact that experts reasonably
and regularly rely on this type of information merely to and regularly rely on this type of information merely to
practice their profession lends strong indicia of reliability practice their profession lends strong indicia of reliability
to source material, when it is presented through a qualified to source material, when it is presented through a qualified
experts eyes. experts eyes.
In re D.Y., 34 A.3d 177, 182 (Pa. Super. 2011), appeal denied, 616 Pa. 638, 47 A.3d In re D.Y., 34 A.3d 177, 182 (Pa. Super. 2011), appeal denied, 616 Pa. 638, 47 A.3d
848 (2012) (citations and quotations omitted). 848 (2012) (citations and quotations omitted).
An expert may base an opinion on facts or data in the An expert may base an opinion on facts or data in the
case that the expert has been made aware of or personally case that the expert has been made aware of or personally
observed. If experts in the particular field would reasonably observed. If experts in the particular field would reasonably
rely on those kinds of facts or data in forming an opinion on rely on those kinds of facts or data in forming an opinion on
the subject, they need not be admissible for the opinion to the subject, they need not be admissible for the opinion to
be admitted.10 be admitted.10
10 Pa.R.E. 703. 10 Pa.R.E. 703.
Clearly, Pa.R.E. 703 permits an expert to base an opinion on otherwise Clearly, Pa.R.E. 703 permits an expert to base an opinion on otherwise
inadmissible evidence so long as the facts or data on which the expert has relied inadmissible evidence so long as the facts or data on which the expert has relied
in forming the opinion, which is illustrated by the computer animation, must be of in forming the opinion, which is illustrated by the computer animation, must be of
a type reasonably relied upon by experts in the particular field. Commonwealth a type reasonably relied upon by experts in the particular field. Commonwealth
v. Serge, 586 Pa. 671, 682 n. 3, 896 A.2d 1170, 1176 n. 2 (2006). v. Serge, 586 Pa. 671, 682 n. 3, 896 A.2d 1170, 1176 n. 2 (2006).
In accordance with the plain language of Rule 703, experts are not limited In accordance with the plain language of Rule 703, experts are not limited
to basing their opinions on firsthand knowledge or on trial records. Pennsylvania to basing their opinions on firsthand knowledge or on trial records. Pennsylvania
courts have long permitted experts to base their opinions on records or reports courts have long permitted experts to base their opinions on records or reports
not in evidence. See Commonwealth v. Thomas, 444 Pa. 436, 445, 282 A.2d 693, not in evidence. See Commonwealth v. Thomas, 444 Pa. 436, 445, 282 A.2d 693,
698-699 (1971) (Pennsylvania Supreme Court adopts rule that medical experts 698-699 (1971) (Pennsylvania Supreme Court adopts rule that medical experts
may base opinions on reports of others not in evidence). may base opinions on reports of others not in evidence).
The Thomas case involved a challenge to the testimony of a The Thomas case involved a challenge to the testimony of a
Commonwealth psychiatrist who was asked to give an opinion Commonwealth psychiatrist who was asked to give an opinion
on the sanity of the defendant. As background for his findings on the sanity of the defendant. As background for his findings
and opinions, the psychiatrist was permitted to refer to tests and opinions, the psychiatrist was permitted to refer to tests
and test scores given by a non-testifying psychologist, as and test scores given by a non-testifying psychologist, as
well as all the reports of numerous psychological tests and well as all the reports of numerous psychological tests and
interviews done by other mental health professionals. The sum interviews done by other mental health professionals. The sum
of these reports, in addition to personal interviews conducted of these reports, in addition to personal interviews conducted
by the testifying psychiatrist, were taken into account when by the testifying psychiatrist, were taken into account when
the doctor concluded that the defendant was not insane at the doctor concluded that the defendant was not insane at
the time of the killing. Thus, it was in the context of this case the time of the killing. Thus, it was in the context of this case
that our supreme court was prompted to adopt as the law in that our supreme court was prompted to adopt as the law in
Pennsylvania the rule which permits an expert witness to rely Pennsylvania the rule which permits an expert witness to rely
on, and disclose, data which is not in evidence in order to form on, and disclose, data which is not in evidence in order to form
his expert opinions, assuming the materials relied on are of the his expert opinions, assuming the materials relied on are of the
type reasonably relied on by experts in their respective fields. type reasonably relied on by experts in their respective fields.
Primavera v. Celotex Corp., 608 A.2d 515, 519 (Pa. Super. 1992), appeal denied, Primavera v. Celotex Corp., 608 A.2d 515, 519 (Pa. Super. 1992), appeal denied,
533 Pa. 641, 622 A.2d 1374 (1993). 533 Pa. 641, 622 A.2d 1374 (1993).
(a) Jury Instruction (a) Jury Instruction
When an expert testifies about the underlying facts and data When an expert testifies about the underlying facts and data
that support the experts opinion and the evidence would be otherwise that support the experts opinion and the evidence would be otherwise
inadmissible, the trial judge, upon request shall or on his own initiative may inadmissible, the trial judge, upon request shall or on his own initiative may
instruct the jury to consider the facts and data only to explain the basis for instruct the jury to consider the facts and data only to explain the basis for
the experts opinion, and not as substantive evidence. Pa.R.E. 703, comment. the experts opinion, and not as substantive evidence. Pa.R.E. 703, comment.
Instruction No. 4.11 of the Pennsylvania Suggested Standard Criminal Instruction No. 4.11 of the Pennsylvania Suggested Standard Criminal
Jury Instructions addresses this issue. Pa. SSJI (Crim) No. 4.11. Jury Instructions addresses this issue. Pa. SSJI (Crim) No. 4.11.
5. Expert Opinion Regarding Credibility 5. Expert Opinion Regarding Credibility
It is generally held that expert testimony cannot be used by the It is generally held that expert testimony cannot be used by the
Commonwealth to encroach on the jurys right to determine the credibility of Commonwealth to encroach on the jurys right to determine the credibility of
witnesses, including victims. Commonwealth v. May, 587 Pa. 184, 898 A.2d witnesses, including victims. Commonwealth v. May, 587 Pa. 184, 898 A.2d
559 (2006), cert. denied, 549 U.S. 1022, 127 S.Ct. 557, 166 L.Ed.2d 414 (2006); 559 (2006), cert. denied, 549 U.S. 1022, 127 S.Ct. 557, 166 L.Ed.2d 414 (2006);
Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988) Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988)
The Pennsylvania Supreme Court, in Gallagher, held expert testimony The Pennsylvania Supreme Court, in Gallagher, held expert testimony
regarding the effect of rape trauma syndrome on the victim specifically and her regarding the effect of rape trauma syndrome on the victim specifically and her
ability to identify her assailant four years after the attack but not two weeks after ability to identify her assailant four years after the attack but not two weeks after
the attack improperly enhanced the victims credibility in the eyes of the jury and the attack improperly enhanced the victims credibility in the eyes of the jury and
thus was inadmissible. thus was inadmissible.
Furthermore, the admissibility of expert testimony in child abuse cases Furthermore, the admissibility of expert testimony in child abuse cases
must be evaluated cautiously in order to prevent encroachment upon the jurys must be evaluated cautiously in order to prevent encroachment upon the jurys
function by the unfair enhancement of a child victims credibility. Commonwealth function by the unfair enhancement of a child victims credibility. Commonwealth
v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. Vidmosko, 574 v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. Vidmosko, 574
In Seese, the Pennsylvania Supreme Court held expert testimony as to the In Seese, the Pennsylvania Supreme Court held expert testimony as to the
general credibility of eight-year-old children who claim to have been sexually general credibility of eight-year-old children who claim to have been sexually
abused encroached on the province of the jury and as such was inadmissible. abused encroached on the province of the jury and as such was inadmissible.
512 Pa. at 443-444, 517 A.2d at 922. 512 Pa. at 443-444, 517 A.2d at 922.
However, a witness may testify to an ultimate issue only in those instances However, a witness may testify to an ultimate issue only in those instances
where the admission will not cause confusion or prejudice. Commonwealth v. where the admission will not cause confusion or prejudice. Commonwealth v.
Brown 596 A.2d 840, 842 (Pa.Super. 1991), appeal denied, 532 Pa. 660, 616 A.2d Brown 596 A.2d 840, 842 (Pa.Super. 1991), appeal denied, 532 Pa. 660, 616 A.2d
982 (1992). 982 (1992).
Article VII. Opinions and Expert Testimony Article VII. Opinions and Expert Testimony
Rule 704. Opinion on an Ultimate Issue Rule 704. Opinion on an Ultimate Issue
An opinion is not objectionable just because it embraces an An opinion is not objectionable just because it embraces an
ultimate issue.11 ultimate issue.11
The trial court must use its discretion in admitting or excluding expert opinions The trial court must use its discretion in admitting or excluding expert opinions
on the ultimate issue, balancing the helpfulness of the testimony to its potential on the ultimate issue, balancing the helpfulness of the testimony to its potential
to cause confusion or prejudice.12 to cause confusion or prejudice.12
6. Standard of Review 6. Standard of Review
The qualification of expert testimony lies within sound discretion The qualification of expert testimony lies within sound discretion
of trial court and will not be reversed absent clear abuse of that discretion. of trial court and will not be reversed absent clear abuse of that discretion.
11 Pa.R.E. 704. 11 Pa.R.E. 704.
12 See Commonwealth v. Brown, 596 A.2d 840, 842 (Pa.Super. 1991), appeal denied, 532 Pa. 660, 616 A.2d 982 (1992). 12 See Commonwealth v. Brown, 596 A.2d 840, 842 (Pa.Super. 1991), appeal denied, 532 Pa. 660, 616 A.2d 982 (1992).
Commonwealth v. Bourgeon, 654 A.2d 555, 557 (Pa. Super. 1994), appeal denied, Commonwealth v. Bourgeon, 654 A.2d 555, 557 (Pa. Super. 1994), appeal denied,
542 Pa. 657, 668 A.2d 1121 (1995). 542 Pa. 657, 668 A.2d 1121 (1995).
A trial court has broad discretion to determine whether evidence is A trial court has broad discretion to determine whether evidence is
admissible and a trial courts ruling on an evidentiary issue will be reversed admissible and a trial courts ruling on an evidentiary issue will be reversed
only if the court abused its discretion. Commonwealth v. Huggins, 68 A.3d 962, only if the court abused its discretion. Commonwealth v. Huggins, 68 A.3d 962,
966 (Pa. Super. 2013), appeal denied, --- Pa. ---, 80 A.3d 775 (2013). A trial court 966 (Pa. Super. 2013), appeal denied, --- Pa. ---, 80 A.3d 775 (2013). A trial court
may exclude evidence that is irrelevant to the issues presented. Evidence is not may exclude evidence that is irrelevant to the issues presented. Evidence is not
relevant unless the inference sought to be raised by it bears upon a matter in relevant unless the inference sought to be raised by it bears upon a matter in
issue and renders the desired inference more probable than it would be without issue and renders the desired inference more probable than it would be without
the evidence. Commonwealth v. Elliott, 80 A.3d 415, 446-447 (Pa. Super. 2013). the evidence. Commonwealth v. Elliott, 80 A.3d 415, 446-447 (Pa. Super. 2013).
Accordingly, a ruling admitting evidence will not be disturbed on appeal unless Accordingly, a ruling admitting evidence will not be disturbed on appeal unless
that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill- that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support to be clearly erroneous. Commonwealth v. Minich, will, or such lack of support to be clearly erroneous. Commonwealth v. Minich,
4 A.3d 1063, 1068 (Pa. Super. 2010) (quotations omitted). Moreover, in cases 4 A.3d 1063, 1068 (Pa. Super. 2010) (quotations omitted). Moreover, in cases
involving the admission of expert testimony: involving the admission of expert testimony:
Generally speaking, the admission of expert testimony is a Generally speaking, the admission of expert testimony is a
matter left largely to the discretion of the trial court, and matter left largely to the discretion of the trial court, and
its rulings thereon will not be reversed absent an abuse of its rulings thereon will not be reversed absent an abuse of
discretion. An experts testimony is admissible when it is based discretion. An experts testimony is admissible when it is based
on facts of record and will not cause confusion or prejudice. on facts of record and will not cause confusion or prejudice.
Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008) (internal citations Commonwealth v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008) (internal citations
and quotations omitted). Where the evidentiary question involves a discretionary and quotations omitted). Where the evidentiary question involves a discretionary
ruling, the appellate scope of review is plenary, in that the appellate court may ruling, the appellate scope of review is plenary, in that the appellate court may
review the entire record in making its decision. Commonwealth v. Mollett, 5 review the entire record in making its decision. Commonwealth v. Mollett, 5
[T]he admission of expert scientific testimony is an evidentiary [T]he admission of expert scientific testimony is an evidentiary
matter for the trial courts discretion and should not be disturbed matter for the trial courts discretion and should not be disturbed
on appeal unless the trial court abuses its discretion. An abuse of on appeal unless the trial court abuses its discretion. An abuse of
discretion may not be found merely because an appellate court discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a result might have reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality, prejudice, bias, or ill- of manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous. will, or such lack of support so as to be clearly erroneous.
--- Pa. ---, 80 A.3d 776 (2013), --- Pa. ---, 80 A.3d 776 (2013),
B. Expert Medical Testimony B. Expert Medical Testimony
1. Expert Testimony by Physicians 1. Expert Testimony by Physicians
Expert medical testimony is governed by the standards articulated in Expert medical testimony is governed by the standards articulated in
section A. Like other expert testimony, an examining physicians testimony is section A. Like other expert testimony, an examining physicians testimony is
admissible if the physician possesses scientific, technical, or other specialized admissible if the physician possesses scientific, technical, or other specialized
knowledge which is beyond that possessed by the average layperson. Pa.R.E. 702. knowledge which is beyond that possessed by the average layperson. Pa.R.E. 702.
Furthermore, a physician, like any other expert, need not use the magic words Furthermore, a physician, like any other expert, need not use the magic words
when presenting an opinion, although the opinion must be within a reasonable when presenting an opinion, although the opinion must be within a reasonable
degree of medical certainty. Commonwealth v. Bishop, 742 A.2d 178, 185 (Pa. degree of medical certainty. Commonwealth v. Bishop, 742 A.2d 178, 185 (Pa.
The following appellate decisions address the admissibility of testimony The following appellate decisions address the admissibility of testimony
of physicians in cases involving sexual assaults. of physicians in cases involving sexual assaults.
An examining physician is needed to testify about hospital records An examining physician is needed to testify about hospital records
when they contain medical diagnosis or opinion. Folger ex rel. Folger when they contain medical diagnosis or opinion. Folger ex rel. Folger
v. Dugan, 876 A.2d 1049, 1056 (Pa. Super. 2005), appeal denied, 587 v. Dugan, 876 A.2d 1049, 1056 (Pa. Super. 2005), appeal denied, 587
Pa. 695, 897 A.2d 458 (2006). Pa. 695, 897 A.2d 458 (2006).
The prosecution may present an expert medical witness in rebuttal The prosecution may present an expert medical witness in rebuttal
to rebut or refute expert testimony presented on the defense side. to rebut or refute expert testimony presented on the defense side.
Commonwealth v. Barnett, 50 A.3d 176 (Pa. Super. 2012), appeal Commonwealth v. Barnett, 50 A.3d 176 (Pa. Super. 2012), appeal
denied, --- Pa. ---, 63 A.3d 772 (2013). denied, --- Pa. ---, 63 A.3d 772 (2013).
In Commonwealth v. Bishop, 742 A.2d 178, 185 (Pa. Super. 1999), In Commonwealth v. Bishop, 742 A.2d 178, 185 (Pa. Super. 1999),
appeal denied, 563 Pa. 638, 758 A.2d 1194 (2000), the doctor, a appeal denied, 563 Pa. 638, 758 A.2d 1194 (2000), the doctor, a
pediatrician, was qualified as an expert and permitted to provide pediatrician, was qualified as an expert and permitted to provide
testimony that child sexual abuse victim had sustained injuries testimony that child sexual abuse victim had sustained injuries
consistent with such a cause, i.e., a male finger inserted into victims consistent with such a cause, i.e., a male finger inserted into victims
vagina. vagina.
In Commonwealth v. Page, 59 A.3d 1118 (Pa. Super. 2013), appeal In Commonwealth v. Page, 59 A.3d 1118 (Pa. Super. 2013), appeal
denied, --- Pa. ---, 80 A.3d 776 (2013), - the doctor testified as an denied, --- Pa. ---, 80 A.3d 776 (2013), - the doctor testified as an
expert in the field of pediatrics and, more specifically, suspected expert in the field of pediatrics and, more specifically, suspected
sexual abuse. She stated to a reasonable degree of medical certainty sexual abuse. She stated to a reasonable degree of medical certainty
that Victim suffered a penetrating injury to her vaginal area. 59 A.3d that Victim suffered a penetrating injury to her vaginal area. 59 A.3d
at 1135. at 1135.
In Commonwealth v. Hernandez, 615 A.2d 1337 (Pa. Super. 1992), In Commonwealth v. Hernandez, 615 A.2d 1337 (Pa. Super. 1992),
the trial court properly permitted the treating physician to testify that the trial court properly permitted the treating physician to testify that
the physical facts derived from his medical examination of the victim the physical facts derived from his medical examination of the victim
were consistent with the victims allegation of rape and anal sodomy. were consistent with the victims allegation of rape and anal sodomy.
615 A.2d at 1343. 615 A.2d at 1343.
In a sexual assault case, it is permissible for a treating physician to In a sexual assault case, it is permissible for a treating physician to
testify that the physical facts he observed were consistent with the testify that the physical facts he observed were consistent with the
allegation of rape. Commonwealth v. Seigrist, 385 A.2d 405, 410 (Pa. allegation of rape. Commonwealth v. Seigrist, 385 A.2d 405, 410 (Pa.
Super. 1978). Super. 1978).
In determining the admissibility of expert testimony on matters In determining the admissibility of expert testimony on matters
related to sexual assaults, our courts have distinguished between related to sexual assaults, our courts have distinguished between
testimony regarding physical facts and testimony regarding the testimony regarding physical facts and testimony regarding the
behavior of victims. Generally, the conduct or behavior of victims has behavior of victims. Generally, the conduct or behavior of victims has
been held not to be a proper subject for expert testimony because such been held not to be a proper subject for expert testimony because such
testimony tends to encroach upon the jurys function of evaluating testimony tends to encroach upon the jurys function of evaluating
witness credibility. Testimony regarding physical facts, however, has witness credibility. Testimony regarding physical facts, however, has
been held to be admissible. Commonwealth v. Johnson, 690 A.2d been held to be admissible. Commonwealth v. Johnson, 690 A.2d
274, 276 (Pa. Super. 1997). 274, 276 (Pa. Super. 1997).
See Section 8.9 for information regarding the collection of forensic sexual See Section 8.9 for information regarding the collection of forensic sexual
assault evidence. assault evidence.
2. Expert Testimony by Sexual Assault Nurse Examiners 2. Expert Testimony by Sexual Assault Nurse Examiners
A growing trend across the United States is the use of Sexual Assault Nurse A growing trend across the United States is the use of Sexual Assault Nurse
Examiners (SANEs) to conduct forensic medical sexual assault examinations. Examiners (SANEs) to conduct forensic medical sexual assault examinations.
SANEs are registered nurses who receive specialized education SANEs are registered nurses who receive specialized education
and fulfill clinical requirements to perform these exams. Some and fulfill clinical requirements to perform these exams. Some
nurses have been certified as SANEsAdult and Adolescent nurses have been certified as SANEsAdult and Adolescent
(SANEA) through the International Association of Forensic (SANEA) through the International Association of Forensic
Nurses (IAFN). Others are specially educated and fulfill clinical Nurses (IAFN). Others are specially educated and fulfill clinical
requirements as forensic nurse examiners (FNEs), enabling requirements as forensic nurse examiners (FNEs), enabling
them to collect forensic evidence for a variety of crimes. them to collect forensic evidence for a variety of crimes.
The terms sexual assault forensic examiner (SAFE) and The terms sexual assault forensic examiner (SAFE) and
sexual assault examiner (SAE) are often used more broadly sexual assault examiner (SAE) are often used more broadly
to denote a health care provider (e.g., a physician, physician to denote a health care provider (e.g., a physician, physician
assistant, nurse, or nurse practitioner) who has been specially assistant, nurse, or nurse practitioner) who has been specially
educated and completed clinical requirements to perform this educated and completed clinical requirements to perform this
exam.13 exam.13
In Commonwealth v. Jennings, 958 A.2d 536 (Pa. Super. 2008), appeal In Commonwealth v. Jennings, 958 A.2d 536 (Pa. Super. 2008), appeal
denied, 610 Pa. 593, 20 A.3d 485 (2011), the Superior Court held that a sexual denied, 610 Pa. 593, 20 A.3d 485 (2011), the Superior Court held that a sexual
assault nurse examiner was sufficiently competent to testify that the victims assault nurse examiner was sufficiently competent to testify that the victims
vaginal redness was consistent with force intercourse. 958 A.2d at 541. The vaginal redness was consistent with force intercourse. 958 A.2d at 541. The
experience and credentials of the nurse were essential to the Superior Courts experience and credentials of the nurse were essential to the Superior Courts
decision, and the Court detailed the qualifications of the witness in arriving at its decision, and the Court detailed the qualifications of the witness in arriving at its
decision: decision:
In addition to her twenty-seven years experience In addition to her twenty-seven years experience
as a registered nurse in the emergency room, Nurse as a registered nurse in the emergency room, Nurse
Brendle completed a course in sexual assault forensic nurse Brendle completed a course in sexual assault forensic nurse
13 U.S. Department of Justice, Department of Violence Against Women, A National Protocol for Sexual Assault Medical Forensic 13 U.S. Department of Justice, Department of Violence Against Women, A National Protocol for Sexual Assault Medical Forensic
Examinations Adults/Adolescents, Second Edition (April 2013), p. 59. Examinations Adults/Adolescents, Second Edition (April 2013), p. 59.
examination at the University of Pennsylvania and a course examination at the University of Pennsylvania and a course
in pediatric sexual assault examination. Nurse Brendle has in pediatric sexual assault examination. Nurse Brendle has
attended several continuing education events in the area attended several continuing education events in the area
of sexual assault forensic examination and has conducted of sexual assault forensic examination and has conducted
forensic seminars and lectures for local colleges, universities, forensic seminars and lectures for local colleges, universities,
prosecutors offices, and coroners offices. We find that Nurse prosecutors offices, and coroners offices. We find that Nurse
Brendles nursing diagnosis, her identification of the victims Brendles nursing diagnosis, her identification of the victims
vaginal redness, was essential to the effective execution and vaginal redness, was essential to the effective execution and
management of the nursing regimen. management of the nursing regimen.
Id. at 540. The Superior Court also found persuasive the decisions of respected Id. at 540. The Superior Court also found persuasive the decisions of respected
courts of other states who had previously held that sexual assault nurse examiners courts of other states who had previously held that sexual assault nurse examiners
are qualified to testify as expert witnesses to the causation of injuries to victims are qualified to testify as expert witnesses to the causation of injuries to victims
of sexual crimes. Id. at 541.14 of sexual crimes. Id. at 541.14
C. Expert Mental Health Testimony C. Expert Mental Health Testimony
Expert psychological or psychiatric testimony is governed by the standards Expert psychological or psychiatric testimony is governed by the standards
articulated in section A. articulated in section A.
1. Conduct or Behavior of Victims 1. Conduct or Behavior of Victims
Generally, testimony regarding conduct or behavior of victims of sexual Generally, testimony regarding conduct or behavior of victims of sexual
assault is not admissible since it tends to invade the jurys function of evaluating assault is not admissible since it tends to invade the jurys function of evaluating
the witness credibility. Commonwealth v. Johnson, 690 A.2d 274, 276 (Pa.Super. the witness credibility. Commonwealth v. Johnson, 690 A.2d 274, 276 (Pa.Super.
1997)(en banc). In Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225 (2002), 1997)(en banc). In Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225 (2002),
the Pennsylvania Supreme Court stated: the Pennsylvania Supreme Court stated:
Expert testimony generally is admissible to aid the jury when Expert testimony generally is admissible to aid the jury when
the subject matter is distinctly related to a science, skill or the subject matter is distinctly related to a science, skill or
occupation which is beyond the knowledge or experience occupation which is beyond the knowledge or experience
of an average lay person. Commonwealth v. Counterman, of an average lay person. Commonwealth v. Counterman,
553 Pa. 370, 719 A.2d 284, 302-03 (citing Commonwealth 553 Pa. 370, 719 A.2d 284, 302-03 (citing Commonwealth
v. OSearo, 466 Pa. 224, 352 A.2d 30, 33 (Pa. 1976)), cert. v. OSearo, 466 Pa. 224, 352 A.2d 30, 33 (Pa. 1976)), cert.
denied, 145 L. Ed. 2d 82, 120 S. Ct. 97 (1999). Conversely, denied, 145 L. Ed. 2d 82, 120 S. Ct. 97 (1999). Conversely,
expert testimony is not admissible where the issue involves expert testimony is not admissible where the issue involves
a matter of common knowledge. Id. at 303. In assessing the a matter of common knowledge. Id. at 303. In assessing the
credibility of a witness, jurors must rely on their ordinary credibility of a witness, jurors must rely on their ordinary
experiences of life, common knowledge of the tendencies of experiences of life, common knowledge of the tendencies of
human behavior, and observations of the witness character human behavior, and observations of the witness character
and demeanor. Id. Because the truthfulness of a witness and demeanor. Id. Because the truthfulness of a witness
is solely within the province of the jury, expert testimony is solely within the province of the jury, expert testimony
cannot be used to bolster the credibility of witnesses. cannot be used to bolster the credibility of witnesses.
14 Following the Jennings decision, the Pennsylvania Supreme Court, in Freed v. Geisinger Medical Center, et al., 601 Pa. 233, 251, 971 14 Following the Jennings decision, the Pennsylvania Supreme Court, in Freed v. Geisinger Medical Center, et al., 601 Pa. 233, 251, 971
A.2d 1202, 1212 (2009), affd on reargument, 607 Pa. 225, 5 A.3d 212 (2010), held that a competent and properly qualified nurse could A.2d 1202, 1212 (2009), affd on reargument, 607 Pa. 225, 5 A.3d 212 (2010), held that a competent and properly qualified nurse could
provide expert opinion testimony regarding medical causation. provide expert opinion testimony regarding medical causation.
Commonwealth v. Minerd, 562 Pa. at 55, 753 A.2d at 230. Commonwealth v. Minerd, 562 Pa. at 55, 753 A.2d at 230.
Therefore, expert testimony regarding the impact of a sexual assault Therefore, expert testimony regarding the impact of a sexual assault
cannot be used to bolster the credibility of a victim. However, as discussed in cannot be used to bolster the credibility of a victim. However, as discussed in
Section 8.2, CONDUCT OR BEHAVIOR OF VICTIMS IN SEXUAL ASSAULT CASES, Section 8.2, CONDUCT OR BEHAVIOR OF VICTIMS IN SEXUAL ASSAULT CASES,
with the passage of 42 Pa.Cons.Stat.Ann. 5920, experts will be able to testify with the passage of 42 Pa.Cons.Stat.Ann. 5920, experts will be able to testify
about specific types of victim responses and victim behaviors in sexual assault about specific types of victim responses and victim behaviors in sexual assault
cases in the Commonwealths case-in-chief, although they still will not be cases in the Commonwealths case-in-chief, although they still will not be
permitted to testify as to a particular victims or witnesss credibility. This law is permitted to testify as to a particular victims or witnesss credibility. This law is
not restricted to the prosecutions case, however, and the defense has an equal not restricted to the prosecutions case, however, and the defense has an equal
opportunity to qualify an expert under this law, and present similar testimony on opportunity to qualify an expert under this law, and present similar testimony on
the defense side.15 the defense side.15
2. Physical and Psychological Trauma Suffered by Victim 2. Physical and Psychological Trauma Suffered by Victim
In Commonwealth v. Bourgeon, 654 A.2d 555, 557 (Pa. Super. 1994), In Commonwealth v. Bourgeon, 654 A.2d 555, 557 (Pa. Super. 1994),
appeal denied, 542 Pa. 657, 668 A.2d 1121 (1995), the trial court found the licensed appeal denied, 542 Pa. 657, 668 A.2d 1121 (1995), the trial court found the licensed
psychologist qualified to testify as an expert as to the physical and psychological psychologist qualified to testify as an expert as to the physical and psychological
trauma suffered by the child sexual assault victim, and as to the child victims trauma suffered by the child sexual assault victim, and as to the child victims
unavailability to testify at trial because of the trauma. The psychologists unavailability to testify at trial because of the trauma. The psychologists
education and experience with child sexual abuse dynamics placed him within education and experience with child sexual abuse dynamics placed him within
the range of having specialized knowledge on the subject of child sexual abuse the range of having specialized knowledge on the subject of child sexual abuse
and its effects. 654 A.2d at 558. This testimony was heard in relation to the and its effects. 654 A.2d at 558. This testimony was heard in relation to the
trial courts decision to declare the victim unavailable to testify at trial, and was trial courts decision to declare the victim unavailable to testify at trial, and was
therefore at a hearing outside of the jurys presence. therefore at a hearing outside of the jurys presence.
8.4 RAPE TRAUMA SYNDROME 8.4 RAPE TRAUMA SYNDROME
Rape trauma syndrome is a posttraumatic stress disorder recognized by the Rape trauma syndrome is a posttraumatic stress disorder recognized by the
American Psychiatric Association, and explained that the phobias and behavioral changes American Psychiatric Association, and explained that the phobias and behavioral changes
experienced by rape victims can influence their ability to identify their attackers.16 experienced by rape victims can influence their ability to identify their attackers.16
In Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), the In Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988), the
Pennsylvania Supreme Court found error by the trial court in allowing the Commonwealth Pennsylvania Supreme Court found error by the trial court in allowing the Commonwealth
to introduce an expert witness on rape trauma syndrome in an effort to explain why a to introduce an expert witness on rape trauma syndrome in an effort to explain why a
victim could have a difficult time in making a timely identification of the assailant. See victim could have a difficult time in making a timely identification of the assailant. See
id., 519 Pa. at 294, 547 A.2d at 357. The Court described the development at trial as id., 519 Pa. at 294, 547 A.2d at 357. The Court described the development at trial as
follows: follows:
15 This statute has been challenged on constitutional grounds. In Commonwealth v. Olivo, the Court of Common Pleas of Berks County 15 This statute has been challenged on constitutional grounds. In Commonwealth v. Olivo, the Court of Common Pleas of Berks County
ruled that section 5920 represents an impermissible attempt at procedural rule making by the legislature, and suspended the statutes ruled that section 5920 represents an impermissible attempt at procedural rule making by the legislature, and suspended the statutes
application. For further discussion, see footnote 3 above. application. For further discussion, see footnote 3 above.
16 Burgess and Holmstrom, Rape Trauma Syndrome, 131 AM.J. PSYCHIATRY 981 (1974). The website of the American Journal of 16 Burgess and Holmstrom, Rape Trauma Syndrome, 131 AM.J. PSYCHIATRY 981 (1974). The website of the American Journal of
Psychiatry describes the work the authors of this article performed on the subject of rape trauma syndrome as: Psychiatry describes the work the authors of this article performed on the subject of rape trauma syndrome as:
The authors interviewed and followed 146 patients admitted during a one-year period to the emergency ward of a city The authors interviewed and followed 146 patients admitted during a one-year period to the emergency ward of a city
hospital with a presenting complaint of having been raped. Based upon an analysis of the 92 adult women rape victims hospital with a presenting complaint of having been raped. Based upon an analysis of the 92 adult women rape victims
in the sample, they document the existence of a rape trauma syndrome and delineate its symptomatology as well as in the sample, they document the existence of a rape trauma syndrome and delineate its symptomatology as well as
that of two variations, compounded reaction and silent reaction. that of two variations, compounded reaction and silent reaction.
At his jury trial, the appellant contested his identification At his jury trial, the appellant contested his identification
as the rapist. In order to downplay the victims repeated failures as the rapist. In order to downplay the victims repeated failures
to identify appellant within weeks of the crimes and bolster her to identify appellant within weeks of the crimes and bolster her
identification after four years, the Commonwealth presented identification after four years, the Commonwealth presented
Ann Burgess as an expert witness with respect to RTS. Burgess Ann Burgess as an expert witness with respect to RTS. Burgess
holds a masters degree in psychiatric nursing and a doctorate holds a masters degree in psychiatric nursing and a doctorate
in nursing science. Together with a colleague, Professor Lynda in nursing science. Together with a colleague, Professor Lynda
Holmstrom of Boston College, Burgess co-authored an article in Holmstrom of Boston College, Burgess co-authored an article in
the American Journal of Psychiatry which is credited with being the American Journal of Psychiatry which is credited with being
the first study of victims of sexual attack to use the term rape the first study of victims of sexual attack to use the term rape
trauma syndrome. Burgesss qualifications included extensive trauma syndrome. Burgesss qualifications included extensive
teaching, research, writing, and forensic experience with the teaching, research, writing, and forensic experience with the
psychological effects found in rape victims. She described the psychological effects found in rape victims. She described the
symptomology of the syndrome, now accepted as a standard symptomology of the syndrome, now accepted as a standard
post-traumatic stress response disorder by the American post-traumatic stress response disorder by the American
Psychiatric Association. She then summarized her examination Psychiatric Association. She then summarized her examination
of the victim, stated her diagnosis that the victim suffered from of the victim, stated her diagnosis that the victim suffered from
RTS, and related her opinion of how the phenomena of RTS bore RTS, and related her opinion of how the phenomena of RTS bore
upon the identification process. upon the identification process.
Id., 519 Pa. at 293, 547 A.2d at 356. The Supreme Court held that the expert testimony Id., 519 Pa. at 293, 547 A.2d at 356. The Supreme Court held that the expert testimony
could not be used for the sole purpose of shoring up the credibility of a witness. See id., could not be used for the sole purpose of shoring up the credibility of a witness. See id.,
519 Pa. at 294, 547 A.2d at 357. See also, Commonwealth v. Robinson, 5 A.3d 339, 343 519 Pa. at 294, 547 A.2d at 357. See also, Commonwealth v. Robinson, 5 A.3d 339, 343
(2010), appeal denied, 610 Pa. 585, 19 A.3d 1051 (2011). (2010), appeal denied, 610 Pa. 585, 19 A.3d 1051 (2011).
At the time of the writing of this book, there is no appellate decision reported At the time of the writing of this book, there is no appellate decision reported
which addresses whether generalized testimony from an expert about rape trauma which addresses whether generalized testimony from an expert about rape trauma
syndrome to explain a type of victim response or a victim behavioral reaction following syndrome to explain a type of victim response or a victim behavioral reaction following
a rape, is admissible under 42 Pa.Cons.Stat.Ann. 5920. In accordance with 5920(b) a rape, is admissible under 42 Pa.Cons.Stat.Ann. 5920. In accordance with 5920(b)
(3), the expert will not be permitted to testify as to a particular victims or witnesss (3), the expert will not be permitted to testify as to a particular victims or witnesss
credibility. credibility.
However, in Commonwealth v. Pickford, 536 A.2d 1348, 1351 n. 2 (Pa. Super. However, in Commonwealth v. Pickford, 536 A.2d 1348, 1351 n. 2 (Pa. Super.
1987), appeal dismissed, 522 Pa. 506, 564 A.2d 158 (1989), the Superior Court described 1987), appeal dismissed, 522 Pa. 506, 564 A.2d 158 (1989), the Superior Court described
rape trauma syndrome as follows: rape trauma syndrome as follows:
Rape trauma syndrome is one kind of post-traumatic stress Rape trauma syndrome is one kind of post-traumatic stress
disorder. The essential feature of post-traumatic stress disorder. The essential feature of post-traumatic stress
disorder is the development of characteristic symptoms after disorder is the development of characteristic symptoms after
a psychologically traumatic incident that is usually beyond the a psychologically traumatic incident that is usually beyond the
range of ordinary human experience. Those symptoms typically range of ordinary human experience. Those symptoms typically
involve reexperiencing the traumatic incident; numbing of involve reexperiencing the traumatic incident; numbing of
responsiveness to, or lessened involvement with, the external responsiveness to, or lessened involvement with, the external
world; and a variety of autonomic, dysphoric, or cognitive world; and a variety of autonomic, dysphoric, or cognitive
symptoms. symptoms.
In Pickford, the Superior Court affirmed the trial courts decision to permit lay testimony In Pickford, the Superior Court affirmed the trial courts decision to permit lay testimony
regarding the victims post-rape trauma, i.e., the victims behavior and conduct several regarding the victims post-rape trauma, i.e., the victims behavior and conduct several
days following the incident. Commonwealth v. Pickford, 536 A.2d at 1351-1352.17 days following the incident. Commonwealth v. Pickford, 536 A.2d at 1351-1352.17
8.5 DNA 8.5 DNA
This section discusses DNA (deoxyribonucleic acid) testing and its potential This section discusses DNA (deoxyribonucleic acid) testing and its potential
application in sexual assault cases. DNA testing is available to both the prosecution and application in sexual assault cases. DNA testing is available to both the prosecution and
the defense. See Commonwealth v. Brison, 618 A.2d 420, 425 (Pa.Super. 1992). the defense. See Commonwealth v. Brison, 618 A.2d 420, 425 (Pa.Super. 1992).
The use of DNA evidence in Pennsylvania has followed a steady path.18 In The use of DNA evidence in Pennsylvania has followed a steady path.18 In
Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994), a rape and murder case, the Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994), a rape and murder case, the
Pennsylvania Supreme Court upheld the admission of DNA evidence found at the crime Pennsylvania Supreme Court upheld the admission of DNA evidence found at the crime
scene which strongly associated the DNA with the defendant. Although the Supreme scene which strongly associated the DNA with the defendant. Although the Supreme
Court acknowledged that DNA evidence can never provide absolute proof of identity, Court acknowledged that DNA evidence can never provide absolute proof of identity,
the Supreme Court concluded that the evidence was relevant and that its weight and the Supreme Court concluded that the evidence was relevant and that its weight and
persuasiveness was for the finder of fact: persuasiveness was for the finder of fact:
The factual evidence of the physical testing of the DNA samples The factual evidence of the physical testing of the DNA samples
and the matching alleles, even without statistical conclusions, and the matching alleles, even without statistical conclusions,
tended to make appellants presence more likely than it would tended to make appellants presence more likely than it would
have been without the evidence, and was therefore relevant. have been without the evidence, and was therefore relevant.
The Pennsylvania Supreme Court, in Commonwealth v. Blasioli, 552 Pa. 149, 713 The Pennsylvania Supreme Court, in Commonwealth v. Blasioli, 552 Pa. 149, 713
A.2d 1117 (1998), recognized that DNA evidence is relevant, and provided the following A.2d 1117 (1998), recognized that DNA evidence is relevant, and provided the following
description of the scientific principles and procedures applied in DNA analysis. description of the scientific principles and procedures applied in DNA analysis.
DNA is genetic material found in most types of cells of the human DNA is genetic material found in most types of cells of the human
body, including white blood cells and cells contained in semen body, including white blood cells and cells contained in semen
and hair follicles. DNA constitutes the primary element of an and hair follicles. DNA constitutes the primary element of an
organisms total genetic information, known as its genome. In organisms total genetic information, known as its genome. In
the process of cellular division, DNA functions essentially as a the process of cellular division, DNA functions essentially as a
template, providing a blueprint for resulting cells. DNA also directs template, providing a blueprint for resulting cells. DNA also directs
the construction of specific proteins that comprise the structural the construction of specific proteins that comprise the structural
component of cells and tissues, as well as the production of component of cells and tissues, as well as the production of
enzymes necessary for essential biochemical reactions. As such, enzymes necessary for essential biochemical reactions. As such,
DNA determines an organisms unique physical composition. DNA determines an organisms unique physical composition.
552 Pa. at 154-155, 713 A.2d at 1119-1120. 552 Pa. at 154-155, 713 A.2d at 1119-1120.
17 Caution must be exercised before testimony similar to that in Pickford is found to be admissible. Cases filed since Pickford note that 17 Caution must be exercised before testimony similar to that in Pickford is found to be admissible. Cases filed since Pickford note that
there is a divergence of opinion as to the admissibility of testimony regarding the syndrome in various situations. See In re T.D., 553 there is a divergence of opinion as to the admissibility of testimony regarding the syndrome in various situations. See In re T.D., 553
A.2d 979, 985 (Pa.Super. 1988), appeal denied, 524 Pa. 610, 569 A.2d 1369 (1989). A.2d 979, 985 (Pa.Super. 1988), appeal denied, 524 Pa. 610, 569 A.2d 1369 (1989).
18 See Commonwealth v. Alderman, 811 A.2d 592, 595-596, (Pa.Super. 2002), appeal denied, 573 Pa. 694, 825 A.2d 1259 (2003). 18 See Commonwealth v. Alderman, 811 A.2d 592, 595-596, (Pa.Super. 2002), appeal denied, 573 Pa. 694, 825 A.2d 1259 (2003).
In Commonwealth v. Koehler, 558 Pa. 334, 357, 737 A.2d 225, 237 (1999), cert. In Commonwealth v. Koehler, 558 Pa. 334, 357, 737 A.2d 225, 237 (1999), cert.
denied, 531 U.S. 829 (2000), the Supreme Court applied Crews and determined that denied, 531 U.S. 829 (2000), the Supreme Court applied Crews and determined that
DNA evidence was relevant and had probative value as to the question of whether a DNA evidence was relevant and had probative value as to the question of whether a
defendant had had sexual intercourse with a victim. In that case, the expert testified that defendant had had sexual intercourse with a victim. In that case, the expert testified that
a DNA analysis indicated that two other men were excluded from being the source of the a DNA analysis indicated that two other men were excluded from being the source of the
semen, but that the appellant was not excluded. semen, but that the appellant was not excluded.
A. Background Information Regarding DNA A. Background Information Regarding DNA
Identification through the use of DNA testing is also referred to as DNA identity Identification through the use of DNA testing is also referred to as DNA identity
testing, profiling, fingerprinting, typing or genotyping. DNA testing focuses on the testing, profiling, fingerprinting, typing or genotyping. DNA testing focuses on the
differences in human DNA segments. differences in human DNA segments.
Large segments of human DNA are the same from person to Large segments of human DNA are the same from person to
person, accounting for human characteristics that are generally person, accounting for human characteristics that are generally
shared. Indeed, from the sequence of the 3 billion base pairs, only shared. Indeed, from the sequence of the 3 billion base pairs, only
about 3 million differ from one individual to another (except in about 3 million differ from one individual to another (except in
the case of identical twins, who have identical DNA) It is the the case of identical twins, who have identical DNA) It is the
existence of such differences in the sequencing of base pairs, existence of such differences in the sequencing of base pairs,
known as polymorphisms, that provides the basis for DNA known as polymorphisms, that provides the basis for DNA
identification. identification.
The length of each polymorphism is determined by the number The length of each polymorphism is determined by the number
of times a particular base pair sequence is repeated along the of times a particular base pair sequence is repeated along the
chromosome. Stretches of DNA along which a short nucleotide chromosome. Stretches of DNA along which a short nucleotide
sequence is repeated are known as variable number tandem sequence is repeated are known as variable number tandem
repeats or VNTRS. Because of their length, such discrete repeats or VNTRS. Because of their length, such discrete
portions of a DNA samples patterned chemical structure are portions of a DNA samples patterned chemical structure are
most easily capable of identification, and much of DNA forensic most easily capable of identification, and much of DNA forensic
analysis relies upon loci containing these polymorphisms. analysis relies upon loci containing these polymorphisms.
Commonwealth v. Blasioli, 552 Pa. 149, 156, 713 A.2d 1117, 1121 (1998) (citations Commonwealth v. Blasioli, 552 Pa. 149, 156, 713 A.2d 1117, 1121 (1998) (citations
omitted). omitted).
1. Types of DNA Tests 1. Types of DNA Tests
Polymerase Chain Reaction-Deoxyribonucleic Acid (PCR) testing is the Polymerase Chain Reaction-Deoxyribonucleic Acid (PCR) testing is the
principal method of analyzing DNA evidence in laboratories across the world. principal method of analyzing DNA evidence in laboratories across the world.
PCR is a method of genetic amplification or replication. PCR is a method of genetic amplification or replication.
Succinctly put, its importance lies in its ability to take a small Succinctly put, its importance lies in its ability to take a small
sample of DNA and make it into a larger sample of DNA. PCR is sample of DNA and make it into a larger sample of DNA. PCR is
utilized for forensic DNA fingerprint identification where the utilized for forensic DNA fingerprint identification where the
DNA in a human body fluid or tissue sample (such as blood, DNA in a human body fluid or tissue sample (such as blood,
semen, hair, or skin) is so minuscule or degraded, or is of such semen, hair, or skin) is so minuscule or degraded, or is of such
poor genetic quality, that standard RFLP analysis cannot be poor genetic quality, that standard RFLP analysis cannot be
employed. This is because RFLP analysis, to be successful, employed. This is because RFLP analysis, to be successful,
requires a substantially large and environmentally undegraded requires a substantially large and environmentally undegraded
sample of DNA . . . PCR can be utilized to amplify a single target sample of DNA . . . PCR can be utilized to amplify a single target
molecule of DNA, such as that contained in a single root of hair. molecule of DNA, such as that contained in a single root of hair.
36 Am. Jur. Proof of Facts 3d 1 (2014). In Commonwealth v. Jones, 811 A.2d 36 Am. Jur. Proof of Facts 3d 1 (2014). In Commonwealth v. Jones, 811 A.2d
1057 (Pa. Super. 2002), appeal denied, 574 Pa. 765, 832 A.2d 435 (2003), the 1057 (Pa. Super. 2002), appeal denied, 574 Pa. 765, 832 A.2d 435 (2003), the
Superior Court explained: Superior Court explained:
PCR stands for polymerase chain reaction, and is a technique PCR stands for polymerase chain reaction, and is a technique
that allowed specific regions of DNA to be copied millions that allowed specific regions of DNA to be copied millions
of times so that those regions can be typed and compared to of times so that those regions can be typed and compared to
the same regions in the DNA of a known individual. (Notes the same regions in the DNA of a known individual. (Notes
of testimony, 10/13-18/00 at 384.) STR stands for short of testimony, 10/13-18/00 at 384.) STR stands for short
tandem repeat, and involves viewing a sequence of DNA that is tandem repeat, and involves viewing a sequence of DNA that is
repeated exactly one repeat sequence after another in tandem, repeated exactly one repeat sequence after another in tandem,
like the cars of a train. (Id.) STR is a type of PCR test. (Id.) like the cars of a train. (Id.) STR is a type of PCR test. (Id.)
811 A.2d at 1061 n. 4. 811 A.2d at 1061 n. 4.
PCR testing is capable of using minute amounts of DNA that are too small PCR testing is capable of using minute amounts of DNA that are too small
for RFLP analysis and chemically amplifying the DNA sequences until enough is for RFLP analysis and chemically amplifying the DNA sequences until enough is
obtained for analysis.19 PCR testing is a technique that allows specific regions obtained for analysis.19 PCR testing is a technique that allows specific regions
of DNA to be copied millions of times so that those regions can be typed and of DNA to be copied millions of times so that those regions can be typed and
compared to the same regions in the DNA of a known individual. Commonwealth compared to the same regions in the DNA of a known individual. Commonwealth
v. Jones, 811 A.2d 1057, 1061 (Pa.Super. 2002), appeal denied, 574 Pa. 765, 832 v. Jones, 811 A.2d 1057, 1061 (Pa.Super. 2002), appeal denied, 574 Pa. 765, 832
A.2d 435 (2003). PCR testing is an amplification/ replication process that allows A.2d 435 (2003). PCR testing is an amplification/ replication process that allows
laboratories to develop DNA profiles from extremely small samples of biological laboratories to develop DNA profiles from extremely small samples of biological
evidence. evidence.
PCR is a three step process: First the DNA strand is denatured, PCR is a three step process: First the DNA strand is denatured,
which means the strand is pulled apart by heating. Annealing is which means the strand is pulled apart by heating. Annealing is
the second step in the process where the sample is cooled and the second step in the process where the sample is cooled and
the primers bind to the primer sequence of the DNA molecule. the primers bind to the primer sequence of the DNA molecule.
(A primer is synthetic or manufactured DNA.) Lastly, the DNA (A primer is synthetic or manufactured DNA.) Lastly, the DNA
strand is heated again activating a polymerase (enzyme) that strand is heated again activating a polymerase (enzyme) that
will produce a mate to the single strand to form a complete will produce a mate to the single strand to form a complete
copy. Each time the PCR process is done, the number of DNA copy. Each time the PCR process is done, the number of DNA
strands doubles, theoretically generally a billion copies after strands doubles, theoretically generally a billion copies after
30 cycles. The development of PCR was crucial to forensic 30 cycles. The development of PCR was crucial to forensic
identification made with DNA because it frequently enables identification made with DNA because it frequently enables
both the prosecution and the defense to analyze the evidence. both the prosecution and the defense to analyze the evidence.
It also allows for sample retention if retesting is later deemed It also allows for sample retention if retesting is later deemed
19 Hazelwood, Robert R. and Ann Wolbert Burgess. Practical Aspects of Rape Investigation: A Multidisciplinary Approach, (Third edition) 19 Hazelwood, Robert R. and Ann Wolbert Burgess. Practical Aspects of Rape Investigation: A Multidisciplinary Approach, (Third edition)
(2001), p. 311. (2001), p. 311.
necessary.20 necessary.20
The restriction fragment length polymorphism method (RFLP) can be The restriction fragment length polymorphism method (RFLP) can be
explained as follows: explained as follows:
DNA forensic analysis begins with the preparation of a DNA DNA forensic analysis begins with the preparation of a DNA
profile, which entails the creation of a picture of multiple profile, which entails the creation of a picture of multiple
VNTRS. One of several techniques is used, among which is the VNTRS. One of several techniques is used, among which is the
restriction fragment length polymorphism method (the RFLP restriction fragment length polymorphism method (the RFLP
method), which was used by the State Police laboratory in method), which was used by the State Police laboratory in
this case and which is commonly used by the FBI and law this case and which is commonly used by the FBI and law
enforcement laboratories across the country. The method enforcement laboratories across the country. The method
isolates VNTRS known as restriction fragments by the use of isolates VNTRS known as restriction fragments by the use of
restriction enzymes, chemical scissors that recognize short restriction enzymes, chemical scissors that recognize short
base pair sequences and cut DNA molecules at those specific base pair sequences and cut DNA molecules at those specific
sites ... Once the restriction fragments are chemically sorted sites ... Once the restriction fragments are chemically sorted
according to size, x-ray pictures are created known as autorads, according to size, x-ray pictures are created known as autorads,
using the process of autoradiography. The autorad displays a using the process of autoradiography. The autorad displays a
discernible pattern of dark bands resembling an electronic bar discernible pattern of dark bands resembling an electronic bar
code, each band representing a fragment of DNA. code, each band representing a fragment of DNA.
Commonwealth v. Blasioli, 552 Pa. at 156, 713 A.2d at 1121 (citations omitted). Commonwealth v. Blasioli, 552 Pa. at 156, 713 A.2d at 1121 (citations omitted).
After DNA profiles are created for both the crime scene and After DNA profiles are created for both the crime scene and
suspect samples, the autorad patterns are measured and suspect samples, the autorad patterns are measured and
compared according to their length. If the similarities are compared according to their length. If the similarities are
such that they fall within a narrow margin, known as a match such that they fall within a narrow margin, known as a match
window, the samples are declared a match. window, the samples are declared a match.
Id., 552 Pa. at 158, 713 A.2d at 1122 (citations omitted). Id., 552 Pa. at 158, 713 A.2d at 1122 (citations omitted).
In Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994), the In Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994), the
Pennsylvania Supreme Court held that evidence of DNA testing was admissible in Pennsylvania Supreme Court held that evidence of DNA testing was admissible in
a criminal trial, after finding that DNA analysis using the RFLP method of testing a criminal trial, after finding that DNA analysis using the RFLP method of testing
was generally accepted in the scientific community. was generally accepted in the scientific community.
2. Statistical Assessment Following Testing 2. Statistical Assessment Following Testing
Once DNA testing is performed, a statistical assessment called population Once DNA testing is performed, a statistical assessment called population
frequency analysis is done. The Supreme Court in Commonwealth v. Blasioli, frequency analysis is done. The Supreme Court in Commonwealth v. Blasioli,
552 Pa. 149, 713 A.2d 1117 (1998) explained: 552 Pa. 149, 713 A.2d 1117 (1998) explained:
The statistical assessment performed after a match has been The statistical assessment performed after a match has been
declared is called population frequency analysis. The object is declared is called population frequency analysis. The object is
20 American Prosecutors Research Institute (APRI), Forensic DNA Fundamentals for the Prosecutor: Be not Afraid, p.11. 20 American Prosecutors Research Institute (APRI), Forensic DNA Fundamentals for the Prosecutor: Be not Afraid, p.11.
to determine the overall likelihood that someone other than to determine the overall likelihood that someone other than
the suspect would possess DNA matching that in the sample the suspect would possess DNA matching that in the sample
obtained from the crime scene. The first step is to determine, obtained from the crime scene. The first step is to determine,
for each matching allele, the likelihood that such an allele for each matching allele, the likelihood that such an allele
would appear in a randomly selected individual This would appear in a randomly selected individual This
determination is made through the application of theoretical determination is made through the application of theoretical
models based upon population genetics. Id. models based upon population genetics. Id.
552 Pa. at 160, 713 A.2d 1123. 552 Pa. at 160, 713 A.2d 1123.
As applied in DNA typing, the product rule states that the probability of As applied in DNA typing, the product rule states that the probability of
a genetic profile occurring randomly is the product of the probabilities of each a genetic profile occurring randomly is the product of the probabilities of each
individual alleles occurrence in the general population. Blasioli, 552 Pa. at individual alleles occurrence in the general population. Blasioli, 552 Pa. at
161, 713 A.2d at 1124. In Blasioli, the defendant attacked the validity of the 161, 713 A.2d at 1124. In Blasioli, the defendant attacked the validity of the
product rule. The Supreme Court explained that the product rule has gained product rule. The Supreme Court explained that the product rule has gained
general acceptance across the disciplines of population genetics, human genetics general acceptance across the disciplines of population genetics, human genetics
and population demographics. Id., 552 Pa. at 168, 713 A.2d at 1128. As such, and population demographics. Id., 552 Pa. at 168, 713 A.2d at 1128. As such,
any remaining dispute as to the validity of the product rule should not result in any remaining dispute as to the validity of the product rule should not result in
the exclusion of evidence based upon this statistical method in criminal trials in the exclusion of evidence based upon this statistical method in criminal trials in
Pennsylvania. Id. Accordingly, statistical evidence based upon the product rule Pennsylvania. Id. Accordingly, statistical evidence based upon the product rule
was properly admitted at trial. See also, Commonwealth v. Robinson, 581 Pa. was properly admitted at trial. See also, Commonwealth v. Robinson, 581 Pa.
154, 214-215, 864 A.2d 460, 495-496 (2004). 154, 214-215, 864 A.2d 460, 495-496 (2004).
B. Admissibility of DNA Evidence B. Admissibility of DNA Evidence
The DNA testing process has been acknowledged by the courts as well as the The DNA testing process has been acknowledged by the courts as well as the
national scientific community for its extraordinary degree of accuracy in matching national scientific community for its extraordinary degree of accuracy in matching
cellular material to individuals. Commonwealth v. Brison, 618 A.2d 420, 425 (Pa.Super. cellular material to individuals. Commonwealth v. Brison, 618 A.2d 420, 425 (Pa.Super.
1992). Pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to be admissible, 1992). Pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to be admissible,
scientific evidence must have gained general acceptance in the relevant scientific scientific evidence must have gained general acceptance in the relevant scientific
community. As stated by the Pennsylvania Supreme Court, theories and methods of community. As stated by the Pennsylvania Supreme Court, theories and methods of
DNA analysis are generally accepted within the scientific community. Commonwealth DNA analysis are generally accepted within the scientific community. Commonwealth
v. Crews, 536 Pa. 508, 640 A.2d 395 (1992). v. Crews, 536 Pa. 508, 640 A.2d 395 (1992).
Commonwealth v. Jones, 811 A.2d 1057 (Pa. Super. 2002), appeal denied, 574 Commonwealth v. Jones, 811 A.2d 1057 (Pa. Super. 2002), appeal denied, 574
Pa. 765, 832 A.2d 435 (2003), the Superior Court found that counsel was Pa. 765, 832 A.2d 435 (2003), the Superior Court found that counsel was
not ineffective for failing to object to DNA testimony on the grounds that the not ineffective for failing to object to DNA testimony on the grounds that the
scientific community has not generally accepted it as a means of identifying a scientific community has not generally accepted it as a means of identifying a
specific individual. specific individual.
DNA evidence need only be relevant and not unduly prejudicial in order to be DNA evidence need only be relevant and not unduly prejudicial in order to be
admissible. admissible.
Commonwealth v. Alderman, 811 A.2d 592 (Pa.Super. 2002), appeal denied, Commonwealth v. Alderman, 811 A.2d 592 (Pa.Super. 2002), appeal denied,
573 Pa. 694, 825 A.2d 1259 (2003): DNA need not establish conclusively 573 Pa. 694, 825 A.2d 1259 (2003): DNA need not establish conclusively
that semen belonged to appellant in order to be considered relevant and not that semen belonged to appellant in order to be considered relevant and not
unduly prejudicial. Rather, it was sufficient that the DNA evidence supported unduly prejudicial. Rather, it was sufficient that the DNA evidence supported
a reasonable inference that appellant had sexual intercourse with the young a reasonable inference that appellant had sexual intercourse with the young
victim. victim.
Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225 (1999), cert. denied, Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225 (1999), cert. denied,
531 U.S. 829 (2000): the Supreme Court applied Crews and determined that 531 U.S. 829 (2000): the Supreme Court applied Crews and determined that
DNA evidence was relevant and had probative value as to whether a defendant DNA evidence was relevant and had probative value as to whether a defendant
had had sexual intercourse with a victim. In this case, the expert testified that had had sexual intercourse with a victim. In this case, the expert testified that
a DNA analysis indicated that two other men were excluded from being the a DNA analysis indicated that two other men were excluded from being the
source of the semen, but that the appellant had not been excluded. source of the semen, but that the appellant had not been excluded.
Although DNA may be used to exculpate individuals, the lack of DNA does not Although DNA may be used to exculpate individuals, the lack of DNA does not
always equate to innocence. In DNA as in other areas, an absence of evidence is not always equate to innocence. In DNA as in other areas, an absence of evidence is not
evidence of absence. Commonwealth v. Heilman, 867 A.2d 542, 546 (Pa.Super. 2004), evidence of absence. Commonwealth v. Heilman, 867 A.2d 542, 546 (Pa.Super. 2004),
appeal denied, 583 Pa. 669, 876 A.2d 393 (2005). In Heilman, the defendant sought DNA appeal denied, 583 Pa. 669, 876 A.2d 393 (2005). In Heilman, the defendant sought DNA
testing under the Post Conviction Relief Act. The Superior Court reviewed the items testing under the Post Conviction Relief Act. The Superior Court reviewed the items
which defendant wanted to have tested and concluded that the absence of defendants which defendant wanted to have tested and concluded that the absence of defendants
DNA evidence at the crime scene was not equivalent to proof of the defendants absence DNA evidence at the crime scene was not equivalent to proof of the defendants absence
from the crime scene. from the crime scene.
DNA testing may exculpate as well as inculpate an individual: Commonwealth DNA testing may exculpate as well as inculpate an individual: Commonwealth
v. Brison, 618 A.2d 420, 425 (Pa.Super. 1992). Appellant alleged a due v. Brison, 618 A.2d 420, 425 (Pa.Super. 1992). Appellant alleged a due
process violation based upon the Commonwealths failure to have DNA process violation based upon the Commonwealths failure to have DNA
testing performed on samples taken from the victim. The Superior Court testing performed on samples taken from the victim. The Superior Court
vacated the conviction and remanded for testing, noting both the inculpatory vacated the conviction and remanded for testing, noting both the inculpatory
and exculpatory capabilities of DNA testing. and exculpatory capabilities of DNA testing.
In Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492 (1997), cert. denied, In Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492 (1997), cert. denied,
523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998), the Pennsylvania 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998), the Pennsylvania
Supreme Court found that the trial court committed error when it excluded Supreme Court found that the trial court committed error when it excluded
the testimony of defendants forensic expert who would have testified that the testimony of defendants forensic expert who would have testified that
the DNA material found under the victims fingernails did not match with the DNA material found under the victims fingernails did not match with
either the defendant or the victim. The trial court had erroneously found that either the defendant or the victim. The trial court had erroneously found that
there was no foundation for the expert opinion, however, the victims father there was no foundation for the expert opinion, however, the victims father
had identified the particles underneath the victims fingernails. had identified the particles underneath the victims fingernails.
C. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT C. DNA DETECTION OF SEXUAL AND VIOLENT OFFENDERS ACT
The Pennsylvania DNA Act, 44 Pa.Cons.Stat.Ann. 2301- 2336 (hereinafter The Pennsylvania DNA Act, 44 Pa.Cons.Stat.Ann. 2301- 2336 (hereinafter
Act) (formerly 35 Pa.Cons.Stat.Ann. 7651.101-7651.1102), establishes an Act) (formerly 35 Pa.Cons.Stat.Ann. 7651.101-7651.1102), establishes an
administrative process for the implementation of a DNA identification system as a tool administrative process for the implementation of a DNA identification system as a tool
in criminal investigations and for deterrence of recidivist crime. See Dial v. Vaughn, 733 in criminal investigations and for deterrence of recidivist crime. See Dial v. Vaughn, 733
A.2d 1, 3 (Pa. Cmwlth. 1999). The identification system contains DNA data from persons A.2d 1, 3 (Pa. Cmwlth. 1999). The identification system contains DNA data from persons
convicted of felony sex offenses or other specified offense. 44 Pa.Cons.Stat.Ann. 2316. convicted of felony sex offenses or other specified offense. 44 Pa.Cons.Stat.Ann. 2316.
The Act provides a range of offenses for which a DNA sample is required. The Act The Act provides a range of offenses for which a DNA sample is required. The Act
identifies the parameters of legitimate mandated DNA extraction to persons convicted identifies the parameters of legitimate mandated DNA extraction to persons convicted
or adjudicated delinquent for a felony sex offense or other specified offense or who are or adjudicated delinquent for a felony sex offense or other specified offense or who are
incarcerated for a felony sex offense or other specified offense.... 44 Pa.Cons.Stat.Ann. incarcerated for a felony sex offense or other specified offense.... 44 Pa.Cons.Stat.Ann.
2316. This statute identifies that a DNA sample should be drawn upon intake to a ... 2316. This statute identifies that a DNA sample should be drawn upon intake to a ...
jail or immediately after the sentencing or adjudication, but may still be drawn any jail or immediately after the sentencing or adjudication, but may still be drawn any
time thereafter by the ... jail if the sample is not timely drawn in accordance with this time thereafter by the ... jail if the sample is not timely drawn in accordance with this
section.... Id. section.... Id.
A felony sex offence is defined in 44 Pa.Cons.Stat.Ann. 2303 which includes a A felony sex offence is defined in 44 Pa.Cons.Stat.Ann. 2303 which includes a
listing of the offenses. Furthermore, 44 Pa.Cons.Stat.Ann. 2303 provides that other listing of the offenses. Furthermore, 44 Pa.Cons.Stat.Ann. 2303 provides that other
specified offense is defined as a felony offense or an offense under 18 Pa.Cons.Stat. specified offense is defined as a felony offense or an offense under 18 Pa.Cons.Stat.
Ann. 2910 or 3126, or an attempt to commit such an offense. Ann. 2910 or 3126, or an attempt to commit such an offense.
Section 3 of the Act establishes requirements for the submission of blood samples Section 3 of the Act establishes requirements for the submission of blood samples
from persons convicted of the specified crimes. Section 3 is codified in 44 Pa.Cons.Stat. from persons convicted of the specified crimes. Section 3 is codified in 44 Pa.Cons.Stat.
Ann. 2316 and provides as follows: Ann. 2316 and provides as follows:
(a) General rule.--A person who is convicted or adjudicated (a) General rule.--A person who is convicted or adjudicated
delinquent for a felony sex offense or other specified offense or delinquent for a felony sex offense or other specified offense or
who is or remains incarcerated for a felony sex offense or other who is or remains incarcerated for a felony sex offense or other
specified offense on or after the effective date of this chapter specified offense on or after the effective date of this chapter
shall have a DNA sample drawn as follows: shall have a DNA sample drawn as follows:
(1) A person who is sentenced or receives a delinquency (1) A person who is sentenced or receives a delinquency
disposition to a term of confinement for an offense disposition to a term of confinement for an offense
covered by this subsection shall have a DNA sample covered by this subsection shall have a DNA sample
drawn upon intake to a prison, jail or juvenile detention drawn upon intake to a prison, jail or juvenile detention
facility or any other detention facility or institution. If the facility or any other detention facility or institution. If the
person is already confined at the time of sentencing or person is already confined at the time of sentencing or
adjudication, the person shall have a DNA sample drawn adjudication, the person shall have a DNA sample drawn
immediately after the sentencing or adjudication. If a DNA immediately after the sentencing or adjudication. If a DNA
sample is not timely drawn in accordance with this section, sample is not timely drawn in accordance with this section,
the DNA sample may be drawn any time thereafter by the the DNA sample may be drawn any time thereafter by the
prison, jail, juvenile detention facility, detention facility or prison, jail, juvenile detention facility, detention facility or
institution. institution.
(2) A person who is convicted or adjudicated delinquent (2) A person who is convicted or adjudicated delinquent
for an offense covered by this subsection shall have a for an offense covered by this subsection shall have a
DNA sample drawn as a condition for any sentence or DNA sample drawn as a condition for any sentence or
adjudication which disposition will not involve an intake adjudication which disposition will not involve an intake
into a prison, jail, juvenile detention facility or any other into a prison, jail, juvenile detention facility or any other
detention facility or institution. detention facility or institution.
(3) Under no circumstances shall a person who is (3) Under no circumstances shall a person who is
convicted or adjudicated delinquent for an offense convicted or adjudicated delinquent for an offense
covered by this subsection be released in any manner covered by this subsection be released in any manner
after such disposition unless and until a DNA sample has after such disposition unless and until a DNA sample has
been withdrawn. been withdrawn.
In Dial v. Vaughn, 733 A.2d 1, 3 (Pa. Cmwlth. 1999), the Commonwealth Court In Dial v. Vaughn, 733 A.2d 1, 3 (Pa. Cmwlth. 1999), the Commonwealth Court
found that the former Act did not violate Pennsylvanias terms for parole, nor any federal found that the former Act did not violate Pennsylvanias terms for parole, nor any federal
or state constitutional mandate. First, the Commonwealth Court found that the Act did or state constitutional mandate. First, the Commonwealth Court found that the Act did
not deprive inmates of their eligibility for parole due to the requirement that the inmate not deprive inmates of their eligibility for parole due to the requirement that the inmate
must submit to pre-release withdrawal of blood for DNA testing. Next, the Court found must submit to pre-release withdrawal of blood for DNA testing. Next, the Court found
that the condition of the pre-release withdrawal of blood did not effect an ex post facto that the condition of the pre-release withdrawal of blood did not effect an ex post facto
enhancement of his sentence and did not amount to a Fourth Amendment violation. enhancement of his sentence and did not amount to a Fourth Amendment violation.
Lastly, any punitive measures mandated by the Act for a refusal to comply with the blood Lastly, any punitive measures mandated by the Act for a refusal to comply with the blood
sample requirement do not amount to ex post facto enhancement of sentence because sample requirement do not amount to ex post facto enhancement of sentence because
they are considered administrative punishment. they are considered administrative punishment.
Similarly, the Third Circuit Court of Appeals, in Johnson v. Pennsylvania Board Similarly, the Third Circuit Court of Appeals, in Johnson v. Pennsylvania Board
of Probation and Parole, 163 Fed.Appx. 159, 2006 WL 167445 (3d Cir. 2006), held that of Probation and Parole, 163 Fed.Appx. 159, 2006 WL 167445 (3d Cir. 2006), held that
the Pennsylvania DNA Act does not cause ex post facto concerns: the Pennsylvania DNA Act does not cause ex post facto concerns:
We agree with the Commonwealth and several of our sister circuits We agree with the Commonwealth and several of our sister circuits
that the collection of blood for identification and establishment that the collection of blood for identification and establishment
of a DNA data bank is, like fingerprinting and photographing, a of a DNA data bank is, like fingerprinting and photographing, a
non-penal, administrative requirement that does not run afoul of non-penal, administrative requirement that does not run afoul of
the ex post facto clause. and therefore did not offend the ex post facto clause. and therefore did not offend
Id. at *163. Moreover, the Third Circuit Court of Appeals, in Johnson v. Ogershok, 134 Id. at *163. Moreover, the Third Circuit Court of Appeals, in Johnson v. Ogershok, 134
Fed.Appx. 535, 2005 WL 1394872 (3d Cir. 2005), held that the Act did not violate the Fed.Appx. 535, 2005 WL 1394872 (3d Cir. 2005), held that the Act did not violate the
Fourth Amendment. Fourth Amendment.
D. Postconviction Forensic DNA Testing D. Postconviction Forensic DNA Testing
Under Section 9543.1 of the Post Conviction Relief Act, 42 Pa.Cons.Stat.Ann Under Section 9543.1 of the Post Conviction Relief Act, 42 Pa.Cons.Stat.Ann
9543.1, a convicted individual serving a sentence of imprisonment or awaiting a 9543.1, a convicted individual serving a sentence of imprisonment or awaiting a
sentence of death may file a motion for postconviction DNA testing of evidence related sentence of death may file a motion for postconviction DNA testing of evidence related
to the investigation or prosecution that resulted in the individuals conviction. to the investigation or prosecution that resulted in the individuals conviction.
Subchapter B. Post Conviction Relief Subchapter B. Post Conviction Relief

9543.1. Postconviction DNA testing 9543.1. Postconviction DNA testing
(a) Motion.-- (a) Motion.--
(1) An individual convicted of a criminal offense in a court (1) An individual convicted of a criminal offense in a court
of this Commonwealth and serving a term of imprisonment of this Commonwealth and serving a term of imprisonment
or awaiting execution because of a sentence of death may or awaiting execution because of a sentence of death may
apply by making a written motion to the sentencing court apply by making a written motion to the sentencing court
for the performance of forensic DNA testing on specific for the performance of forensic DNA testing on specific
evidence that is related to the investigation or prosecution evidence that is related to the investigation or prosecution
that resulted in the judgment of conviction.21 that resulted in the judgment of conviction.21
The procedural and pleading requirements for the motion are specified in Sections The procedural and pleading requirements for the motion are specified in Sections
9543.1(b) and (c). 9543.1(b) and (c).
If DNA testing is conducted, the applicant may then use the test results, If DNA testing is conducted, the applicant may then use the test results,
presumably favorable, as a basis for a separate PCRA petition under other sections of presumably favorable, as a basis for a separate PCRA petition under other sections of
the Post Conviction Relief Act, as more detailed in Section 9543.1(f). the Post Conviction Relief Act, as more detailed in Section 9543.1(f).
A motion for DNA testing does not confer a right to appointed counsel. A motion for DNA testing does not confer a right to appointed counsel.
Commonwealth v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011), appeal denied, 616 Pa Commonwealth v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011), appeal denied, 616 Pa
467, 50 A.3d 121 (2012). 467, 50 A.3d 121 (2012).
1. Timeliness of Motion 1. Timeliness of Motion
A motion for DNA testing under Section 9543.1 is not subject to the one- A motion for DNA testing under Section 9543.1 is not subject to the one-
year filing deadline set forth in 42 Pa.Cons.Stat.Ann 9545(b)(1) for PCRA year filing deadline set forth in 42 Pa.Cons.Stat.Ann 9545(b)(1) for PCRA
petitions. Commonwealth v. Conway, 14 A.3d 101, 108, (Pa. Super. 2011), appeal petitions. Commonwealth v. Conway, 14 A.3d 101, 108, (Pa. Super. 2011), appeal
denied, 612 Pa. 687, 29 A.3d 795 (2011). In fact, Section 9543.1 places no time denied, 612 Pa. 687, 29 A.3d 795 (2011). In fact, Section 9543.1 places no time
limits on motions for DNA testing. However, any subsequent PCRA petition based limits on motions for DNA testing. However, any subsequent PCRA petition based
on DNA test results, like any other PCRA petition, must satisfy the timeliness on DNA test results, like any other PCRA petition, must satisfy the timeliness
requirements of the PCRA. Commonwealth v. Brooks, 875 A.2d 1141, 1147 (Pa. requirements of the PCRA. Commonwealth v. Brooks, 875 A.2d 1141, 1147 (Pa.
Super. 2005). Super. 2005).
Therefore, after DNA testing has been completed, the applicant may, within Therefore, after DNA testing has been completed, the applicant may, within
60 days of receiving the test results, petition to the court for post-conviction relief 60 days of receiving the test results, petition to the court for post-conviction relief
on the basis of after-discovered evidence, an exception to the one-year statute of on the basis of after-discovered evidence, an exception to the one-year statute of
limitations. See 42 Pa.Cons.Stat.Ann 9543.1(f); 42 Pa.Cons.Stat.Ann 9545(b) limitations. See 42 Pa.Cons.Stat.Ann 9543.1(f); 42 Pa.Cons.Stat.Ann 9545(b)
(1)(ii); Commonwealth v. Weeks, 831 A.2d 1194, 1196 (Pa. Super. 2003) (while (1)(ii); Commonwealth v. Weeks, 831 A.2d 1194, 1196 (Pa. Super. 2003) (while
Section 9543.1 does not directly create an exception to the one-year time bar, Section 9543.1 does not directly create an exception to the one-year time bar,
it allows for a convicted individual to first obtain DNA testing which could then it allows for a convicted individual to first obtain DNA testing which could then
be used within a PCRA petition to establish new facts in order to satisfy the be used within a PCRA petition to establish new facts in order to satisfy the
requirements of an exception under 42 Pa.Cons.Stat.Ann 9545(b)(2)). requirements of an exception under 42 Pa.Cons.Stat.Ann 9545(b)(2)).
2. Requirements to obtain DNA Testing 2. Requirements to obtain DNA Testing
The statute sets forth several threshold requirements to obtain DNA The statute sets forth several threshold requirements to obtain DNA
testing: (1) the evidence specified must be available for testing on the date of the testing: (1) the evidence specified must be available for testing on the date of the
motion; (2) if the evidence was discovered prior to the applicants conviction, it motion; (2) if the evidence was discovered prior to the applicants conviction, it
21 42 Pa.Cons.stat.ann 9543.1. 21 42 Pa.Cons.stat.ann 9543.1.
was not already DNA tested because (a) technology for testing did not exist at the was not already DNA tested because (a) technology for testing did not exist at the
time of the applicants trial; (b) the applicants counsel did not request testing in time of the applicants trial; (b) the applicants counsel did not request testing in
a case that went to verdict before January 1, 1995; or (c) counsel sought funds a case that went to verdict before January 1, 1995; or (c) counsel sought funds
from the court to pay for the testing because his client was indigent, and the from the court to pay for the testing because his client was indigent, and the
court refused the request despite the clients indigency. See 42 Pa.Cons.Stat.Ann court refused the request despite the clients indigency. See 42 Pa.Cons.Stat.Ann
9543.1(a)(2). 9543.1(a)(2).
Furthermore, the applicant is required to present a prima facie case that Furthermore, the applicant is required to present a prima facie case that
the requested DNA testing, assuming it gives exculpatory results, would establish the requested DNA testing, assuming it gives exculpatory results, would establish
the petitioners actual innocence of the crime. Commonwealth v. Williams, 35 the petitioners actual innocence of the crime. Commonwealth v. Williams, 35
A.3d 44, 50 (Pa. Super. 2011), appeal denied, 616 Pa 467, 50 A.3d 121 (2012). A.3d 44, 50 (Pa. Super. 2011), appeal denied, 616 Pa 467, 50 A.3d 121 (2012).
In Commonwealth v. Williams, 909 A.2d 383 (Pa. Super. 2006), the In Commonwealth v. Williams, 909 A.2d 383 (Pa. Super. 2006), the
defendant filed for post conviction DNA testing. The Superior Court, citing defendant filed for post conviction DNA testing. The Superior Court, citing
Commonwealth v. Brooks, 875 A.2d 1141, 1148 (Pa. Super. 2005) and Commonwealth v. Brooks, 875 A.2d 1141, 1148 (Pa. Super. 2005) and
Commonwealth v. Young, 873 A.2d 720, 724 (Pa. Super. 2005), appeal denied, Commonwealth v. Young, 873 A.2d 720, 724 (Pa. Super. 2005), appeal denied,
586 Pa. 739, 891 A.2d 733 (2005), stated that a motion for DNA testing, while 586 Pa. 739, 891 A.2d 733 (2005), stated that a motion for DNA testing, while
clearly separate and distinct from claims pursuant to other sections of the clearly separate and distinct from claims pursuant to other sections of the
PCRA, nonetheless constitutes a postconviction petition under the PCRA.22 The PCRA, nonetheless constitutes a postconviction petition under the PCRA.22 The
Superior Court further held that because the defendant had presented a defense Superior Court further held that because the defendant had presented a defense
of consent at the time of his trial on the charge of Rape, he failed to set forth of consent at the time of his trial on the charge of Rape, he failed to set forth
prima facie requirements for postconviction DNA testing. Because the identity prima facie requirements for postconviction DNA testing. Because the identity
of perpetrator was not at issue, he failed to satisfy his burden under 42 Pa.Cons. of perpetrator was not at issue, he failed to satisfy his burden under 42 Pa.Cons.
With respect to the prima facie requirement for DNA testing, the Superior With respect to the prima facie requirement for DNA testing, the Superior
Court, in Commonwealth v. Heilman, 867 A.2d 542 (Pa. Super. 2005), appeal Court, in Commonwealth v. Heilman, 867 A.2d 542 (Pa. Super. 2005), appeal
denied, 583 Pa. 669, 876 A.2d 393 (2005), explained that on its face, the prima facie denied, 583 Pa. 669, 876 A.2d 393 (2005), explained that on its face, the prima facie
requirement set forth in 9543.1(c)(3) and reinforced in 9543.1(d)(2) requires requirement set forth in 9543.1(c)(3) and reinforced in 9543.1(d)(2) requires
an appellant to demonstrate that favorable results of the requested DNA testing an appellant to demonstrate that favorable results of the requested DNA testing
would establish the appellants actual innocence of the crime of conviction. would establish the appellants actual innocence of the crime of conviction.
Because the petitioner in Heilman failed to make such a demonstration, his Because the petitioner in Heilman failed to make such a demonstration, his
petition was properly denied. Heilman, 867 A.2d at 546-547. petition was properly denied. Heilman, 867 A.2d at 546-547.
The trial court is directed not to order the testing if it determines, after The trial court is directed not to order the testing if it determines, after
review of the trial record, that there is no reasonable possibility that the testing review of the trial record, that there is no reasonable possibility that the testing
would produce exculpatory evidence to establish petitioners actual innocence. would produce exculpatory evidence to establish petitioners actual innocence.
The burden lies with the petitioner to make a prima facie case that favorable The burden lies with the petitioner to make a prima facie case that favorable
results from the requested DNA testing would establish his innocence. results from the requested DNA testing would establish his innocence.
We note that the statute does not require petitioner to show that We note that the statute does not require petitioner to show that
the DNA testing results would be favorable. However, the court the DNA testing results would be favorable. However, the court
22 The Post Conviction Relief Act is codified at 42 Pa.Cons.stat.ann. 9541-9546. 22 The Post Conviction Relief Act is codified at 42 Pa.Cons.stat.ann. 9541-9546.
is required to review not only the motion [for DNA testing], is required to review not only the motion [for DNA testing],
but also the trial record, and then make a determination as to but also the trial record, and then make a determination as to
whether there is a reasonable possibility that DNA testing whether there is a reasonable possibility that DNA testing
would produce exculpatory evidence that would establish would produce exculpatory evidence that would establish
petitioners actual innocence. We find no ambiguity in the petitioners actual innocence. We find no ambiguity in the
standard established by the legislature with the words of this standard established by the legislature with the words of this
statute. statute.
Commonwealth v. Smith, 889 A.2d 582, 584 (Pa. Super. 2005), appeal denied, Commonwealth v. Smith, 889 A.2d 582, 584 (Pa. Super. 2005), appeal denied,
588 Pa. 769, 905 A.2d 500 (2006) (emphasis added). 588 Pa. 769, 905 A.2d 500 (2006) (emphasis added).
4. Final and Appealable Order 4. Final and Appealable Order
An order from the trial court granting a motion for post-conviction DNA An order from the trial court granting a motion for post-conviction DNA
testing constitutes a final order immediately appealable to the Superior Court. testing constitutes a final order immediately appealable to the Superior Court.
Commonwealth v. Scarborough, --- Pa. ---, 64 A.3d 602 (2013). Commonwealth v. Scarborough, --- Pa. ---, 64 A.3d 602 (2013).
8.6 BITE MARK EVIDENCE 8.6 BITE MARK EVIDENCE
Bite mark analysis is part of the field of forensic odontology. Bite mark analysis is part of the field of forensic odontology.
In Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929 (1990), cert. denied, In Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929 (1990), cert. denied,
499 U.S. 931, 111 S.Ct. 1338, 113 L.Ed.2d 269 (1991), habeas corpus granted on other 499 U.S. 931, 111 S.Ct. 1338, 113 L.Ed.2d 269 (1991), habeas corpus granted on other
grounds, Henry v. Horn, 218 F.Supp.2d 671 (E.D.Pa. 2002), the Pennsylvania Supreme grounds, Henry v. Horn, 218 F.Supp.2d 671 (E.D.Pa. 2002), the Pennsylvania Supreme
Court found that it was not error for a general practicing dentist who has specialized Court found that it was not error for a general practicing dentist who has specialized
knowledge of bite mark identification to testify that bite marks were attacking or sadistic knowledge of bite mark identification to testify that bite marks were attacking or sadistic
when the trial court instructed the jury that it was free to accept or reject his testimony. when the trial court instructed the jury that it was free to accept or reject his testimony.
In Brooks v. State, 748 So.2d 736, 746-747 (Miss. 1999), the Supreme Court of In Brooks v. State, 748 So.2d 736, 746-747 (Miss. 1999), the Supreme Court of
Mississippi exhaustively reviewed the states which have accepted bite mark evidence as Mississippi exhaustively reviewed the states which have accepted bite mark evidence as
scientific evidence. Among them are: scientific evidence. Among them are:
Handley v. State, 515 So.2d 121, 130 (Ala.Crim.App. 1987): forensic Handley v. State, 515 So.2d 121, 130 (Ala.Crim.App. 1987): forensic
odonatologist testimony admissible as evidence is in the nature of physical odonatologist testimony admissible as evidence is in the nature of physical
comparisons as opposed to scientific tests or experiments; comparisons as opposed to scientific tests or experiments;
State v. Richards, 166 Ariz. 576, 804 P.2d 109, 111 (Ct.App. 1990): a Frye State v. Richards, 166 Ariz. 576, 804 P.2d 109, 111 (Ct.App. 1990): a Frye
hearing is not required where bite-mark evidence is presented by a qualified hearing is not required where bite-mark evidence is presented by a qualified
expert; expert;
Verdict v. State, 315 Ark. 436, 868 S.W.2d 443, 447 (1993): bite-mark evidence Verdict v. State, 315 Ark. 436, 868 S.W.2d 443, 447 (1993): bite-mark evidence
is not novel scientific evidence and was relevant and reliable; is not novel scientific evidence and was relevant and reliable;
People v. Marsh, 177 Mich. App. 161, 441 N.W.2d 33, 36 (1989): general People v. Marsh, 177 Mich. App. 161, 441 N.W.2d 33, 36 (1989): general
reliability of bite-mark evidence as a means of positive identification is reliability of bite-mark evidence as a means of positive identification is
sufficiently established that a court is authorized to take judicial notice of sufficiently established that a court is authorized to take judicial notice of
reliability without conducting hearing on same; reliability without conducting hearing on same;
State v. Armstrong, 179 W.Va. 435, 369 S.E.2d 870, 877 1988): reliability of State v. Armstrong, 179 W.Va. 435, 369 S.E.2d 870, 877 1988): reliability of
bite-mark evidence is sufficiently established that a court is authorized to bite-mark evidence is sufficiently established that a court is authorized to
take judicial notice of same; take judicial notice of same;
State v. Stinson, 134 Wis.2d 224, 397 N.W.2d 136, 140 (Ct.App. 1986): bite- State v. Stinson, 134 Wis.2d 224, 397 N.W.2d 136, 140 (Ct.App. 1986): bite-
mark identification evidence presented by an expert witness can be a valuable mark identification evidence presented by an expert witness can be a valuable
aid to a jury in understanding and interpreting evidence; aid to a jury in understanding and interpreting evidence;
Caution must be exercised before expert testimony regarding bite mark identification Caution must be exercised before expert testimony regarding bite mark identification
is ruled admissible. The National Academy of Sciences, in 2009 after a comprehensive is ruled admissible. The National Academy of Sciences, in 2009 after a comprehensive
study, stressed the differences in expert opinions on this type of identification evidence. study, stressed the differences in expert opinions on this type of identification evidence.
The NAS studys bite mark section concluded: The NAS studys bite mark section concluded:
Although the majority of forensic odontologists are Although the majority of forensic odontologists are
satisfied that bite marks can demonstrate sufficient detail satisfied that bite marks can demonstrate sufficient detail
for positive identification, no scientific studies support this for positive identification, no scientific studies support this
assessment, and no large population studies have been assessment, and no large population studies have been
conducted. In numerous instances, experts diverge widely conducted. In numerous instances, experts diverge widely
in their evaluations of the same bite mark evidence, which in their evaluations of the same bite mark evidence, which
has led to questioning of the value and scientific objectivity has led to questioning of the value and scientific objectivity
of such evidence. of such evidence.
Bite mark testimony has been criticized basically on the Bite mark testimony has been criticized basically on the
same grounds as testimony by questioned document same grounds as testimony by questioned document
examiners and microscopic hair examiners. The committee examiners and microscopic hair examiners. The committee
received no evidence of an existing scientific basis for received no evidence of an existing scientific basis for
identifying an individual to the exclusion of all others. identifying an individual to the exclusion of all others.
That same finding was reported in a 2001 review, which That same finding was reported in a 2001 review, which
revealed a lack of valid evidence to support many of the revealed a lack of valid evidence to support many of the
assumptions made by forensic dentists during bite mark assumptions made by forensic dentists during bite mark
comparisons. Some research is warranted in order to comparisons. Some research is warranted in order to
identify the circumstances within which the methods of identify the circumstances within which the methods of
forensic odontology can provide probative value. forensic odontology can provide probative value.
Strengthening Forensic Science in the United States: A Path Forward (2009), at 176, Strengthening Forensic Science in the United States: A Path Forward (2009), at 176,
National Academies Press, National Academy of Sciences (footnotes omitted). National Academies Press, National Academy of Sciences (footnotes omitted).
8.7 HAIR SAMPLE ANALYSIS 8.7 HAIR SAMPLE ANALYSIS
NOTE: DNA testing has generally replaced the scientific technique of hair analysis. NOTE: DNA testing has generally replaced the scientific technique of hair analysis.
Nevertheless, hair analysis continues to be admissible; therefore, it is discussed in this Nevertheless, hair analysis continues to be admissible; therefore, it is discussed in this
Benchbook. Benchbook.
Microscopic hair comparison evidence satisfies the Frye23 standard. Microscopic hair comparison evidence satisfies the Frye23 standard.
Commonwealth v. McCauley, 588 A.2d 941 (Pa. Super. 1991), appeal denied, 529 Pa. Commonwealth v. McCauley, 588 A.2d 941 (Pa. Super. 1991), appeal denied, 529 Pa.
656, 604 A.2d 248 (1992). In McCauley, the Superior Court held that microscopic hair 656, 604 A.2d 248 (1992). In McCauley, the Superior Court held that microscopic hair
comparison evidence was admissible as scientific expert evidence. comparison evidence was admissible as scientific expert evidence.
The court in McCauley held that the testimony of a forensic criminologist was legally The court in McCauley held that the testimony of a forensic criminologist was legally
relevant insofar as it was more probative than prejudicial and it gave the jury acceptable relevant insofar as it was more probative than prejudicial and it gave the jury acceptable
evidence of tying the defendant to the crime: evidence of tying the defendant to the crime:
Various federal and state courts have held the same. United Various federal and state courts have held the same. United
States v. Cyphers, 553 F.2d 1064 (7th Cir. 1977), cert. denied 434 States v. Cyphers, 553 F.2d 1064 (7th Cir. 1977), cert. denied 434
U.S. 843, 98 S.Ct. 142, 54 L.Ed.2d 107 (1978) (armed robbery U.S. 843, 98 S.Ct. 142, 54 L.Ed.2d 107 (1978) (armed robbery
prosecution, expert opinion that human hairs found on items used prosecution, expert opinion that human hairs found on items used
in robbery could have come from defendants was admissible for in robbery could have come from defendants was admissible for
whatever value jury might give it). United States v. Haskins, 536 whatever value jury might give it). United States v. Haskins, 536
F.2d 775 (8th Cir.1976), cert. denied 429 U.S. 898, 97 S.Ct. 263, 50 F.2d 775 (8th Cir.1976), cert. denied 429 U.S. 898, 97 S.Ct. 263, 50
L.Ed.2d 182 (1977) (bank robbery, expert testimony identifying L.Ed.2d 182 (1977) (bank robbery, expert testimony identifying
hair sample found in a silk stocking near bank as matching known hair sample found in a silk stocking near bank as matching known
sample of defendants hair admissible; credibility of expert and sample of defendants hair admissible; credibility of expert and
weight given was for jury to determine and testimony was not weight given was for jury to determine and testimony was not
invasion of jurys province). People v. Columbo, 118 Ill.App.3d invasion of jurys province). People v. Columbo, 118 Ill.App.3d
882, 74 Ill.Dec. 304, 455 N.E.2d 733 (1983), cert. denied 467 U.S. 882, 74 Ill.Dec. 304, 455 N.E.2d 733 (1983), cert. denied 467 U.S.
1208, 104 S.Ct. 2394, 81 L.Ed.2d 351 (1984) (expert testimony 1208, 104 S.Ct. 2394, 81 L.Ed.2d 351 (1984) (expert testimony
that defendants hair was similar in color and characteristics to that defendants hair was similar in color and characteristics to
hair found on murder victims T-shirt had probative value, and hair found on murder victims T-shirt had probative value, and
although not conclusive, was properly considered by the jury, although not conclusive, was properly considered by the jury,
and neither exclusionary character of hair comparisons nor lack and neither exclusionary character of hair comparisons nor lack
of absolute scientific certainty rendered hair experts testimony of absolute scientific certainty rendered hair experts testimony
inadmissible). Paxton v. State, 159 Ga.App. 175, 282 S.E.2d inadmissible). Paxton v. State, 159 Ga.App. 175, 282 S.E.2d
912 (1981), writ denied 248 Ga. 231, 283 S.E.2d 235 (1982) 912 (1981), writ denied 248 Ga. 231, 283 S.E.2d 235 (1982)
(expert testimony pubic hairs found at scene of rape matching (expert testimony pubic hairs found at scene of rape matching
defendants admissible). State v. Pratt, 306 N.C. 673, 295 S.E.2d defendants admissible). State v. Pratt, 306 N.C. 673, 295 S.E.2d
462 (1982); State v. Kersting, 292 Or. 350, 638 P.2d 1145 (1982); 462 (1982); State v. Kersting, 292 Or. 350, 638 P.2d 1145 (1982);
State v. Melson, 638 S.W.2d 342 (Tenn.1982), cert. denied 459 State v. Melson, 638 S.W.2d 342 (Tenn.1982), cert. denied 459
U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983); State v. Clayton, U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983); State v. Clayton,
646 P.2d 723 (Utah 1982). 646 P.2d 723 (Utah 1982).
McCauley, 588 A.2d at 947. McCauley, 588 A.2d at 947.
In Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111 (2011), the appellant In Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111 (2011), the appellant
attempted to convince the Court that the acceptance of microscopic hair comparison attempted to convince the Court that the acceptance of microscopic hair comparison
23 Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). 23 Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).
evidence as per McCauley was outdated and no longer met the Frye standards. The evidence as per McCauley was outdated and no longer met the Frye standards. The
Supreme Court, however, rejected this argument, finding that many jurisdictions had Supreme Court, however, rejected this argument, finding that many jurisdictions had
determined that human hair analysis by microscopical comparison is an accepted and determined that human hair analysis by microscopical comparison is an accepted and
reliable scientific method or technique, thus not requiring a Frye hearing. Chmiel, 612 reliable scientific method or technique, thus not requiring a Frye hearing. Chmiel, 612
Pa. at 384, 30 A.3d at 1141. Pa. at 384, 30 A.3d at 1141.
Caution must be exercised before expert testimony regarding hair sample analysis is Caution must be exercised before expert testimony regarding hair sample analysis is
ruled admissible. The National Academy of Sciences, after a comprehensive study in ruled admissible. The National Academy of Sciences, after a comprehensive study in
2009, stressed the differences in expert opinions on this type of identification evidence. 2009, stressed the differences in expert opinions on this type of identification evidence.
The NAS studys hair sample section concluded: The NAS studys hair sample section concluded:
No scientifically accepted statistics exist about the frequency No scientifically accepted statistics exist about the frequency
with which particular characteristics of hair are distributed with which particular characteristics of hair are distributed
in the population. There appear to be no uniform standards in the population. There appear to be no uniform standards
on the number of features on which hairs must agree before on the number of features on which hairs must agree before
an examiner may declare a match. In one study of validity an examiner may declare a match. In one study of validity
and accuracy of the technique, the authors required exact and accuracy of the technique, the authors required exact
agreement on seven major characteristics and at least agreement on seven major characteristics and at least
two agreements among six secondary characteristics. The two agreements among six secondary characteristics. The
categorization of hair features depends heavily on examiner categorization of hair features depends heavily on examiner
proficiency and practical experience. proficiency and practical experience.
Strengthening Forensic Science in the United States: A Path Forward (2009), at 160, Strengthening Forensic Science in the United States: A Path Forward (2009), at 160,
National Academies Press, National Academy of Sciences (footnotes omitted). National Academies Press, National Academy of Sciences (footnotes omitted).
8.8 BLOOD TYPING EVIDENCE 8.8 BLOOD TYPING EVIDENCE
NOTE: DNA testing has generally replaced the scientific technique of blood typing analysis. NOTE: DNA testing has generally replaced the scientific technique of blood typing analysis.
Nevertheless, blood typing analysis continues to be admissible; therefore, it is discussed in Nevertheless, blood typing analysis continues to be admissible; therefore, it is discussed in
this Benchbook. this Benchbook.
Blood typing evidence is admissible, but may only be used to corroborate the Blood typing evidence is admissible, but may only be used to corroborate the
defendants presence at the crime scene. defendants presence at the crime scene.
Proof that a defendant shares a blood type with that of samples found at the Proof that a defendant shares a blood type with that of samples found at the
scene is relevant and admissible when it corroborates independent facts which show scene is relevant and admissible when it corroborates independent facts which show
either (1) that the person who committed the crime lost blood, or (2) that the defendant either (1) that the person who committed the crime lost blood, or (2) that the defendant
was present at the scene of the crime. Commonwealth v. Porter, 323 A.2d 128, 131 (Pa. was present at the scene of the crime. Commonwealth v. Porter, 323 A.2d 128, 131 (Pa.
Super. 1974).24 Super. 1974).24
But see - Commonwealth v. Mussoline, 429 Pa. 464, 240 A.2d 549 (1967): But see - Commonwealth v. Mussoline, 429 Pa. 464, 240 A.2d 549 (1967):
the defendants blood type matched blood spots found at the crime scene the defendants blood type matched blood spots found at the crime scene
and the defendant had a cut on his arm; however no other evidence existed and the defendant had a cut on his arm; however no other evidence existed
24 See generally, 16 B Wests Pa. Prac., Criminal Practice 29:13, Blood, blood tests, secretion, and breathalyzers. 24 See generally, 16 B Wests Pa. Prac., Criminal Practice 29:13, Blood, blood tests, secretion, and breathalyzers.
to corroborate defendants presence at the crime scene. The Supreme Court to corroborate defendants presence at the crime scene. The Supreme Court
held that the blood type evidence should not have been admitted. held that the blood type evidence should not have been admitted.
We think it clear that under our own case law, as well as that We think it clear that under our own case law, as well as that
of other jurisdictions, mere proof that a criminal defendant of other jurisdictions, mere proof that a criminal defendant
shares a blood type with that of samples found near the crime shares a blood type with that of samples found near the crime
scene is legally irrelevant to show that the defendant was in scene is legally irrelevant to show that the defendant was in
fact present at the scene of the crime without Some additional, fact present at the scene of the crime without Some additional,
independent evidence Tending to show either (1) that the man independent evidence Tending to show either (1) that the man
who committed the crime did lose blood in the process or (2) who committed the crime did lose blood in the process or (2)
that the defendant was present at the scene. In short, blood- that the defendant was present at the scene. In short, blood-
type evidence such as this can only be used to Corroborate type evidence such as this can only be used to Corroborate
other evidence of the defendants whereabouts at the crucial other evidence of the defendants whereabouts at the crucial
time. time.
In Commonwealth v. Statti, 73 A. 2d 688 (Pa.Super. 1950), the blood type evidence In Commonwealth v. Statti, 73 A. 2d 688 (Pa.Super. 1950), the blood type evidence
was used to corroborate the victims testimony. The blood tests of the defendants blood was used to corroborate the victims testimony. The blood tests of the defendants blood
was compared with that found on the seat cover of his automobile. The victim identified was compared with that found on the seat cover of his automobile. The victim identified
the defendant as her assailant and testified that she bit him during the rape. the defendant as her assailant and testified that she bit him during the rape.
Electrophoresis Electrophoresis is a way of determining blood type through the Electrophoresis Electrophoresis is a way of determining blood type through the
use of electric current to separate important biological proteins.25 In Commonwealth v. use of electric current to separate important biological proteins.25 In Commonwealth v.
Zook, 532 Pa. 79, 615 A.2d 1 (1992), the Pennsylvania Supreme Court, following a Frye Zook, 532 Pa. 79, 615 A.2d 1 (1992), the Pennsylvania Supreme Court, following a Frye
analysis, ruled that an electrophoresis test of dried blood stains is admissible. See also, analysis, ruled that an electrophoresis test of dried blood stains is admissible. See also,
Commonwealth v. Dengler, 586 Pa. 54, 68, 890 A.2d 372, 381 (2005). Commonwealth v. Dengler, 586 Pa. 54, 68, 890 A.2d 372, 381 (2005).
8.9 FORENSIC SEXUAL ASSAULT EVIDENCE COLLECTION 8.9 FORENSIC SEXUAL ASSAULT EVIDENCE COLLECTION
The sexual assault medical forensic exam is an examination of a sexual assault The sexual assault medical forensic exam is an examination of a sexual assault
victim by a health care provider, ideally one who has specialized education and clinical victim by a health care provider, ideally one who has specialized education and clinical
experience in the collection of forensic evidence and treatment of these types of patients/ experience in the collection of forensic evidence and treatment of these types of patients/
victims. victims.
The forensic component includes gathering information from the patient for The forensic component includes gathering information from the patient for
the medical forensic history, an examination, documentation of biological and physical the medical forensic history, an examination, documentation of biological and physical
findings, a collection of evidence from the patient and follow up as needed to document findings, a collection of evidence from the patient and follow up as needed to document
additional evidence. The medical component includes coordinating treatment of additional evidence. The medical component includes coordinating treatment of
injuries, providing care for STDs, assessing pregnancy risk and discussing treatment injuries, providing care for STDs, assessing pregnancy risk and discussing treatment
options, including reproductive health services, and providing instructions and referrals options, including reproductive health services, and providing instructions and referrals
for follow up medical care. for follow up medical care.
25 Michigan Sexual Assault Benchbook, Revised Edition 2013, Page 8-19. 25 Michigan Sexual Assault Benchbook, Revised Edition 2013, Page 8-19.
The sexual assault medical forensic exam is an examination The sexual assault medical forensic exam is an examination
of a sexual assault patient by a health care provider, ideally of a sexual assault patient by a health care provider, ideally
one who has specialized education and clinical experience one who has specialized education and clinical experience
in the collection of forensic evidence and treatment of these in the collection of forensic evidence and treatment of these
patients. The examination includes gathering information from patients. The examination includes gathering information from
the patient for the medical forensic history; an examination; the patient for the medical forensic history; an examination;
coordinating treatment of injuries, documentation of biological coordinating treatment of injuries, documentation of biological
and physical findings, and collection of evidence from the patient; and physical findings, and collection of evidence from the patient;
documentation of findings; information, treatment, and referrals documentation of findings; information, treatment, and referrals
for STIs, pregnancy, suicidal ideation, alcohol and substance for STIs, pregnancy, suicidal ideation, alcohol and substance
abuse, and other nonacute medical concerns; and follow-up as abuse, and other nonacute medical concerns; and follow-up as
needed to provide additional healing, treatment, or collection needed to provide additional healing, treatment, or collection
of evidence. This exam is referred to as the forensic medical of evidence. This exam is referred to as the forensic medical
examination under the Violence Against Women Act (VAWA). examination under the Violence Against Women Act (VAWA).
U.S. Department of Justice, Department of Violence Against Women, A National Protocol U.S. Department of Justice, Department of Violence Against Women, A National Protocol
for Sexual Assault Medical Forensic Examinations Adults/Adolescents, Second Edition for Sexual Assault Medical Forensic Examinations Adults/Adolescents, Second Edition
(April 2013), p. 17. (April 2013), p. 17.
A rape kit is a product frequently used for the examination of sexual assault A rape kit is a product frequently used for the examination of sexual assault
victims in which blood, hair, saliva, semen, fibers, and other substances are collected victims in which blood, hair, saliva, semen, fibers, and other substances are collected
from the victims body and clothing and retained for further forensic examination.26 from the victims body and clothing and retained for further forensic examination.26
Commonwealth v. Hawk, 551 Pa. 71, 73 n.1, 709 A.2d 373, 374 n.1 (1998). Commonwealth v. Hawk, 551 Pa. 71, 73 n.1, 709 A.2d 373, 374 n.1 (1998).
The following appellate court cases addressed the admissibility of results from The following appellate court cases addressed the admissibility of results from
the use of a rape kit on the victim with reference to presence of semen. the use of a rape kit on the victim with reference to presence of semen.
Commonwealth v. Campbell, 368 A.2d 1299 (Pa.Super. 1976): the admission Commonwealth v. Campbell, 368 A.2d 1299 (Pa.Super. 1976): the admission
of sexual assault evidence collection kit evidence showing the presence of of sexual assault evidence collection kit evidence showing the presence of
sperm in the victims vagina to corroborate the victims testimony that the sperm in the victims vagina to corroborate the victims testimony that the
defendant had raped her was proper even though the prosecution presented defendant had raped her was proper even though the prosecution presented
no scientific evidence identifying the sperm as that of the defendant. no scientific evidence identifying the sperm as that of the defendant.
Commonwealth v. Hawk, 551 Pa. 71, 73 n.1, 709 A.2d 373, 374 n.1 (1998): Commonwealth v. Hawk, 551 Pa. 71, 73 n.1, 709 A.2d 373, 374 n.1 (1998):
the results of rape kit tests which showed a lack of semen and foreign pubic the results of rape kit tests which showed a lack of semen and foreign pubic
hair were consistent with defendants assertion that he did not engage in hair were consistent with defendants assertion that he did not engage in
sexual intercourse with the victim even though the forensic scientist could not sexual intercourse with the victim even though the forensic scientist could not
state conclusively that no intercourse had occurred. The scientists testimony state conclusively that no intercourse had occurred. The scientists testimony
concerning the possibility of no intercourse was sufficient to support a concerning the possibility of no intercourse was sufficient to support a
reasonable inference that the defendant did not have sexual intercourse with reasonable inference that the defendant did not have sexual intercourse with
the victim. the victim.
The results of the rape kit, other than the presence of spermatozoa, are hearsay The results of the rape kit, other than the presence of spermatozoa, are hearsay
26 Note that the more recent terms, Sexual Assault Evidence Collection Kit or Rape Evidence Collection Kit more accurately describe 26 Note that the more recent terms, Sexual Assault Evidence Collection Kit or Rape Evidence Collection Kit more accurately describe
the evidence collection kit. the evidence collection kit.
and cannot be admitted without the testimony of the criminalist who conducted the test. and cannot be admitted without the testimony of the criminalist who conducted the test.
The following appellate court cases address the admissibility issues due to The following appellate court cases address the admissibility issues due to
the differences in (1) objective findings from the use of a rape kit and (2) the differences in (1) objective findings from the use of a rape kit and (2)
opinions from treating health care professionals. opinions from treating health care professionals.
Commonwealth v. Hemingway, 534 A.2d 1104, 1107-1108 (Pa.Super. Commonwealth v. Hemingway, 534 A.2d 1104, 1107-1108 (Pa.Super.
1987): the results of the rape kit exam were not admissible as business 1987): the results of the rape kit exam were not admissible as business
documents; the report contained opinions and conclusions beyond documents; the report contained opinions and conclusions beyond
mere event of hospitalization and treatment prescribed, and were not mere event of hospitalization and treatment prescribed, and were not
admissible unless the doctor who prepared the report containing the admissible unless the doctor who prepared the report containing the
information was available for in-court cross-examination regarding the information was available for in-court cross-examination regarding the
accuracy, reliability and veracity of his opinion. accuracy, reliability and veracity of his opinion.
Commonwealth v. Campbell, 368 A.2d 1299, 1301 (Pa. Super. 1976): Commonwealth v. Campbell, 368 A.2d 1299, 1301 (Pa. Super. 1976):
the presence of sperm is a factual and not a medical conclusion and is the presence of sperm is a factual and not a medical conclusion and is
admissible hearsay. admissible hearsay.
Commonwealth v. Xiong, 630 A.2d 446, 452 (Pa.Super. 1993) (en banc), Commonwealth v. Xiong, 630 A.2d 446, 452 (Pa.Super. 1993) (en banc),
appeal denied, 537 Pa. 609, 641 A.2d 309 (1994): notation stating, no appeal denied, 537 Pa. 609, 641 A.2d 309 (1994): notation stating, no
hymen in hospital record was a factual assertion rather than a diagnosis hymen in hospital record was a factual assertion rather than a diagnosis
or opinion. It was not an opinion based statement, but rather was based or opinion. It was not an opinion based statement, but rather was based
on an observation made during the exam. This rationale would apply to on an observation made during the exam. This rationale would apply to
examinations made pursuant to a Sexual Assault Evidence Collection Kit examinations made pursuant to a Sexual Assault Evidence Collection Kit
or emergency room procedures. or emergency room procedures.
Commonwealth v. Birdsong, 611 Pa. 203, 24 A.3d 319 (2011): the Commonwealth v. Birdsong, 611 Pa. 203, 24 A.3d 319 (2011): the
defendants trial counsel stipulated to the results of the rape kit analysis, defendants trial counsel stipulated to the results of the rape kit analysis,
which included that semen had been found in the rape victims body. which included that semen had been found in the rape victims body.
The Supreme Court concluded that this stipulation was not ineffective The Supreme Court concluded that this stipulation was not ineffective
assistance because the defense lawyer did not want the Commonwealth assistance because the defense lawyer did not want the Commonwealth
to actually test the semen samples and perhaps be able to connect them to actually test the semen samples and perhaps be able to connect them
with the defendant. with the defendant.
8.10 EXPERT TESTIMONY ON DEFENSE CLAIM OF FALSE CONFESSION 8.10 EXPERT TESTIMONY ON DEFENSE CLAIM OF FALSE CONFESSION
In Commonwealth v. Alicia, --- Pa. ---, 92 A.3d 753 (2014), the trial court was In Commonwealth v. Alicia, --- Pa. ---, 92 A.3d 753 (2014), the trial court was
faced with a motion by the Commonwealth to preclude a defense expert witness from faced with a motion by the Commonwealth to preclude a defense expert witness from
testifying about the theory of false confessions. The defendant had confessed that, on the testifying about the theory of false confessions. The defendant had confessed that, on the
night of October 30, 2005, he fatally shot George Rowe in the back of the head during an night of October 30, 2005, he fatally shot George Rowe in the back of the head during an
altercation in Philadelphia. Based on the defendants confession, as well as a statement altercation in Philadelphia. Based on the defendants confession, as well as a statement
by his aunt identifying him as the shooter, he was charged with murder and related by his aunt identifying him as the shooter, he was charged with murder and related
crimes. crimes.
Prior to trial, the Commonwealth filed a motion in limine seeking to preclude the Prior to trial, the Commonwealth filed a motion in limine seeking to preclude the
defendant from calling as an expert witness on the phenomenon of false confessions defendant from calling as an expert witness on the phenomenon of false confessions
Richard Leo, J.D., Ph.D., an associate professor of law at the University of San Francisco. Richard Leo, J.D., Ph.D., an associate professor of law at the University of San Francisco.
On August 6, 2008, after conducting a hearing, the trial judge ruled that Dr. Leo would not On August 6, 2008, after conducting a hearing, the trial judge ruled that Dr. Leo would not
be allowed to testify with regard to the alleged case specific facts of the interrogation in be allowed to testify with regard to the alleged case specific facts of the interrogation in
this case, but would be permitted to testify generally about false confessions, to testify this case, but would be permitted to testify generally about false confessions, to testify
generally in terms of his knowledge and his research and other peoples research hes generally in terms of his knowledge and his research and other peoples research hes
familiar with, about police methods and police training methods, police interrogation familiar with, about police methods and police training methods, police interrogation
methods, and to testify generally about why certain interrogation techniques, if used in methods, and to testify generally about why certain interrogation techniques, if used in
a particular case, may increase the risk of a false confession. a particular case, may increase the risk of a false confession.
The Superior Court accepted the Commonwealths appeal as an appeal from a The Superior Court accepted the Commonwealths appeal as an appeal from a
collateral order, and affirmed in a plurality memorandum decision. collateral order, and affirmed in a plurality memorandum decision.
The Pennsylvania Supreme Court, in an opinion by Justice Seamus P. McCaffery, The Pennsylvania Supreme Court, in an opinion by Justice Seamus P. McCaffery,
reversed, and specifically held that expert testimony on the phenomenon of false reversed, and specifically held that expert testimony on the phenomenon of false
confessions is not admissible as it would impermissibly invade the jurys exclusive role confessions is not admissible as it would impermissibly invade the jurys exclusive role
as the arbiter of credibility. 92 A.3d at 762. as the arbiter of credibility. 92 A.3d at 762.
Precedent from the Superior Court Precedent from the Superior Court
In Commonwealth v. Harrell, 65 A.3d 420 (Pa. Super. 2013), a murder case, the In Commonwealth v. Harrell, 65 A.3d 420 (Pa. Super. 2013), a murder case, the
defendant argued that his confession had been coerced. The defense wanted to call Dr. defendant argued that his confession had been coerced. The defense wanted to call Dr.
Richard Ofshe to testify regarding the phenomenon of false confessions: Richard Ofshe to testify regarding the phenomenon of false confessions:
Appellant wished to present Dr. Ofshe to educate the jury Appellant wished to present Dr. Ofshe to educate the jury
regarding false confessions, that false confessions exist, how to regarding false confessions, that false confessions exist, how to
recognize them, and police interrogation techniques in general. recognize them, and police interrogation techniques in general.
65 A.3d at 429. The trial court opined that the issue of false confessions was not beyond 65 A.3d at 429. The trial court opined that the issue of false confessions was not beyond
the knowledge of the average layperson. The Superior Court agreed, and affirmed. the knowledge of the average layperson. The Superior Court agreed, and affirmed.
In Commonwealth v. Szakal, 50 A.3d 210 (Pa. Super. 2012), the Superior Court In Commonwealth v. Szakal, 50 A.3d 210 (Pa. Super. 2012), the Superior Court
upheld the trial courts denial of the defendants request to call Dr. Debra Davis, an expert upheld the trial courts denial of the defendants request to call Dr. Debra Davis, an expert
in the field of false confessions: in the field of false confessions:
[I]f the expert is only testifying generally about the fact that [I]f the expert is only testifying generally about the fact that
false confessions happen, that is well within the grasp of the false confessions happen, that is well within the grasp of the
average layperson and expert testimony would not be required average layperson and expert testimony would not be required
under Rule 702. The components of a false confession, according under Rule 702. The components of a false confession, according
to Dr. Davis, include factors such as the interrogation tactics to Dr. Davis, include factors such as the interrogation tactics
employed, the training of the law enforcement personnel employed, the training of the law enforcement personnel
involved, and the stress tolerance of the suspect. This [c]ourt involved, and the stress tolerance of the suspect. This [c]ourt
found that testimony concerning these factors can be elicited found that testimony concerning these factors can be elicited
(and attacked) through the testimony of other witnesses and is (and attacked) through the testimony of other witnesses and is
capable of being understood by the average juror. The jury can capable of being understood by the average juror. The jury can
then make its own determination as to the weight afforded to then make its own determination as to the weight afforded to
the defendants confession. Therefore, Dr. Davis testimony was the defendants confession. Therefore, Dr. Davis testimony was
not proper because expert testimony is inadmissible when the not proper because expert testimony is inadmissible when the
matter can be described to the jury and the conditions evaluated matter can be described to the jury and the conditions evaluated
by them without the assistance of one claiming to possess special by them without the assistance of one claiming to possess special
knowledge upon the subject. knowledge upon the subject.
Id. at 228 (quoting the trial court opinion). The Superior Court found no error with the Id. at 228 (quoting the trial court opinion). The Superior Court found no error with the
trial courts analysis and ultimate decision to preclude Dr. Davis testimony as it would trial courts analysis and ultimate decision to preclude Dr. Davis testimony as it would
not assist the trier of fact. Id. not assist the trier of fact. Id.
8.11 EXPERT TESTIMONY ON ISSUE OF EYEWITNESS IDENTIFICATION 8.11 EXPERT TESTIMONY ON ISSUE OF EYEWITNESS IDENTIFICATION
In Commonwealth v. Walker, --- Pa. ---, 92 A.3d (2014), the Pennsylvania Supreme In Commonwealth v. Walker, --- Pa. ---, 92 A.3d (2014), the Pennsylvania Supreme
Court, in a change from prior reported decisions, held that the admission of expert Court, in a change from prior reported decisions, held that the admission of expert
testimony regarding eyewitness identification was no longer per se impermissible. The testimony regarding eyewitness identification was no longer per se impermissible. The
admissibility of such expert testimony is now at the discretion of the trial court. admissibility of such expert testimony is now at the discretion of the trial court.
In Walker, the defense proffered Dr. Solomon Fulero regarding the fallibility of In Walker, the defense proffered Dr. Solomon Fulero regarding the fallibility of
human memory and the science as to human recall, and to admit scientific studies related human memory and the science as to human recall, and to admit scientific studies related
to the reliability of eyewitness testimony generally. The trial court denied the motion to the reliability of eyewitness testimony generally. The trial court denied the motion
without a Frye27 hearing, reasoning that prior precedent held that expert testimony without a Frye27 hearing, reasoning that prior precedent held that expert testimony
concerning eyewitness identification was inadmissibile. concerning eyewitness identification was inadmissibile.
After accepting review, the Supreme Court summarized the expert testimony to After accepting review, the Supreme Court summarized the expert testimony to
be provided by Dr. Fulero as: be provided by Dr. Fulero as:
The phenomenon of weapons focus; The phenomenon of weapons focus;

The reduced reliability of identification in cross-racial identification cases; The reduced reliability of identification in cross-racial identification cases;
The significantly decreased accuracy in eyewitness identifications in The significantly decreased accuracy in eyewitness identifications in
highstress/traumatic criminal events; highstress/traumatic criminal events;
Increased risk of mistaken identification when police investigators do not Increased risk of mistaken identification when police investigators do not
warn a witness, prior to viewing a photo array or line up, that the perpetrator warn a witness, prior to viewing a photo array or line up, that the perpetrator
may or may not be in the display; and may or may not be in the display; and
The lack of a strong correlation between witness statements of confidence The lack of a strong correlation between witness statements of confidence
and witness accuracy. and witness accuracy.
The Supreme Court found that the expert testimony fell within Pennsylvania Rule The Supreme Court found that the expert testimony fell within Pennsylvania Rule
of Evidence 702 and therefore implicated a Frye general acceptance test. of Evidence 702 and therefore implicated a Frye general acceptance test.
Rule 702. Testimony by Expert Witnesses Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an experience, training, or education may testify in the form of an
opinion or otherwise if: opinion or otherwise if:
27 Frye v. United States, 293 F.1013 (D.C.Cir. 1923). 27 Frye v. United States, 293 F.1013 (D.C.Cir. 1923).
(a) the experts scientific, technical, or other specialized (a) the experts scientific, technical, or other specialized
knowledge is beyond that possessed by the average layperson; knowledge is beyond that possessed by the average layperson;
(b) the experts scientific, technical, or other specialized (b) the experts scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue; and or to determine a fact in issue; and
(c) the experts methodology is generally accepted in the (c) the experts methodology is generally accepted in the
relevant field. relevant field.
The Supreme Court held that such expert testimony admissible on the limited The Supreme Court held that such expert testimony admissible on the limited
issue of eyewitness identification, at the discretion of the trial court, and conditioned issue of eyewitness identification, at the discretion of the trial court, and conditioned
upon the trial court finding that the expert is qualified, the proffered testimony relevant, upon the trial court finding that the expert is qualified, the proffered testimony relevant,
and that the expert testimony will assist the trier of fact. The determination is to be and that the expert testimony will assist the trier of fact. The determination is to be
made on a case-by-case basis. made on a case-by-case basis.
The defense must make an on-the-record detailed proffer to the court, including: The defense must make an on-the-record detailed proffer to the court, including:
An explanation of precisely how the experts testimony is relevant to the An explanation of precisely how the experts testimony is relevant to the
eyewitness identifications under consideration, and eyewitness identifications under consideration, and
How it will assist the jury in its evaluation. How it will assist the jury in its evaluation.
If the proffer is permitted, the proof should establish the presence of factors If the proffer is permitted, the proof should establish the presence of factors
(e.g., stress or differences in race, as between the eyewitness and the defendant) which (e.g., stress or differences in race, as between the eyewitness and the defendant) which
may be shown to impair the accuracy of eyewitness identification in aspects which are may be shown to impair the accuracy of eyewitness identification in aspects which are
(or to a degree which is) beyond the common understanding of laypersons. Id. at *21. (or to a degree which is) beyond the common understanding of laypersons. Id. at *21.
Chapter 9 Chapter 9
POST-TRIAL POST-TRIAL
PROCEDURES PROCEDURES
AND SENTENCING AND SENTENCING
Post Trial Procedures and Sentencing Post Trial Procedures and Sentencing
Chapter Nine Table of Contents Chapter Nine Table of Contents

Post-Trial Procedures and Sentencing Post-Trial Procedures and Sentencing

9.2 BAIL FOLLOWING FINDING OF GUILT ............................................................ 5 9.2 BAIL FOLLOWING FINDING OF GUILT ............................................................ 5
A. Before Sentencing ............................................................................................................. 5 A. Before Sentencing ............................................................................................................. 5
B. After Sentencing ................................................................................................................ 5 B. After Sentencing ................................................................................................................ 5
C. Reasons for Refusing or Revoking Bail Must be Stated on the Record ...... 7 C. Reasons for Refusing or Revoking Bail Must be Stated on the Record ...... 7
D. Modification of Bail After Verdict or After Sentencing ..................................... 7 D. Modification of Bail After Verdict or After Sentencing ..................................... 7
9.3 PRE-SENTENCE INVESTIGATION REPORT .................................................... 8 9.3 PRE-SENTENCE INVESTIGATION REPORT .................................................... 8
A. Purpose .................................................................................................................................. 8 A. Purpose .................................................................................................................................. 8
B. Requirement: Reasons for Decline to Order Pre-sentence Report ............... 9 B. Requirement: Reasons for Decline to Order Pre-sentence Report ............... 9
C. Contents of Pre-sentence Report ..............................................................................10 C. Contents of Pre-sentence Report ..............................................................................10
D. Victim Impact Statement .............................................................................................11 D. Victim Impact Statement .............................................................................................11
E. Psychiatric or Psychological Examination ...........................................................12 E. Psychiatric or Psychological Examination ...........................................................12
F. Disclosure of Pre-sentence Report ..........................................................................13 F. Disclosure of Pre-sentence Report ..........................................................................13
9.4 DNA DATA AND TESTING .................................................................................14 9.4 DNA DATA AND TESTING .................................................................................14
A. The DNA Act ..........................................................................................................................14 A. The DNA Act ..........................................................................................................................14
9.5. SCHEDULING OF SENTENCING .......................................................................15 9.5. SCHEDULING OF SENTENCING .......................................................................15
A. Time for Sentencing........................................................................................................15 A. Time for Sentencing........................................................................................................15
B. Remedy for Late Sentencing .......................................................................................16 B. Remedy for Late Sentencing .......................................................................................16
1. Rule 704 Not Applicable to Re-sentencing Following Remand..............17 1. Rule 704 Not Applicable to Re-sentencing Following Remand..............17
9.6 SUGGESTED COLLOQUY FOLLOWING 9.6 SUGGESTED COLLOQUY FOLLOWING
GUILTY PLEA OR GUILTY VERDICT ...............................................................17 GUILTY PLEA OR GUILTY VERDICT ...............................................................17
9.7 SEXUALLY VIOLENT PREDATOR ASSESSMENT..........................................17 9.7 SEXUALLY VIOLENT PREDATOR ASSESSMENT..........................................17
A. Sexually Violent Offense and Sexually Violent Predator .................................18 A. Sexually Violent Offense and Sexually Violent Predator .................................18
1. Sexually Violent Offense..........................................................................................19 1. Sexually Violent Offense..........................................................................................19
2. Sexually Violent Predator .......................................................................................21 2. Sexually Violent Predator .......................................................................................21
B. The Sexually Violent Predator Assessment ..........................................................22 B. The Sexually Violent Predator Assessment ..........................................................22
1. Order for Assessment ..............................................................................................22 1. Order for Assessment ..............................................................................................22
2. The SVP Assessment.................................................................................................23 2. The SVP Assessment.................................................................................................23
3. The SVP Assessment Hearing ...............................................................................24 3. The SVP Assessment Hearing ...............................................................................24
4. Classification as Sexually Violent Predator.....................................................24 4. Classification as Sexually Violent Predator.....................................................24
D. Reporting Requirements ..............................................................................................25 D. Reporting Requirements ..............................................................................................25

E. Requirements at Time of Sentencing-Notification ............................................26 E. Requirements at Time of Sentencing-Notification ............................................26
F. Appellate Review of SVP Status .................................................................................27 F. Appellate Review of SVP Status .................................................................................27
1. Plenary Review ..........................................................................................................27 1. Plenary Review ..........................................................................................................27
2. Clear and Convincing Standard ..........................................................................27 2. Clear and Convincing Standard ..........................................................................27
9.8 SENTENCING OPTIONS .....................................................................................27 9.8 SENTENCING OPTIONS .....................................................................................27
A. General Standards ...........................................................................................................27 A. General Standards ...........................................................................................................27
B. Statutory Penalties for Crimes of Sexual Violence ............................................30 B. Statutory Penalties for Crimes of Sexual Violence ............................................30
1. Rape ...............................................................................................................................32 1. Rape ...............................................................................................................................32
2. Statutory Sexual Assault .......................................................................................33 2. Statutory Sexual Assault .......................................................................................33
3. Involuntary Deviate Sexual Intercourse ........................................................33 3. Involuntary Deviate Sexual Intercourse ........................................................33
4. Sexual Assault............................................................................................................34 4. Sexual Assault............................................................................................................34
5. Institutional Sexual Assault .................................................................................34 5. Institutional Sexual Assault .................................................................................34
6. Aggravated Indecent Assault ..............................................................................35 6. Aggravated Indecent Assault ..............................................................................35
7. Indecent Assault.......................................................................................................36 7. Indecent Assault.......................................................................................................36
8. Indecent Exposure ..................................................................................................37 8. Indecent Exposure ..................................................................................................37
9. Invasion of Privacy ..................................................................................................38 9. Invasion of Privacy ..................................................................................................38
10. Sexual Intercourse with Animal........................................................................39 10. Sexual Intercourse with Animal........................................................................39
11. Incest ............................................................................................................................39 11. Incest ............................................................................................................................39
12. Corruption of Minors Sexual Nature ...........................................................39 12. Corruption of Minors Sexual Nature ...........................................................39
13. Sexual Abuse of Children .....................................................................................39 13. Sexual Abuse of Children .....................................................................................39
14. Duty of Internet Provider to Remove Child Pornography .....................41 14. Duty of Internet Provider to Remove Child Pornography .....................41
15. Unlawful Contact with a Minor .........................................................................41 15. Unlawful Contact with a Minor .........................................................................41
16. Sexual Exploitation of Children.........................................................................41 16. Sexual Exploitation of Children.........................................................................41
17. Luring a Child into a Motor Vehicle or Structure.......................................42 17. Luring a Child into a Motor Vehicle or Structure.......................................42
18. Endangering Welfare of Children .....................................................................42 18. Endangering Welfare of Children .....................................................................42
19. Victims of Sexual or Physical Abuse ................................................................42 19. Victims of Sexual or Physical Abuse ................................................................42
20. Sexual Assault by Sports Official, Volunteer or Employee .....................42 20. Sexual Assault by Sports Official, Volunteer or Employee .....................42
C. Inchoate Crimes ...............................................................................................................43 C. Inchoate Crimes ...............................................................................................................43
D. Mandatory Sentences for Crimes of Sexual Violence .......................................43 D. Mandatory Sentences for Crimes of Sexual Violence .......................................43
1. Crime of Violence with a Firearm ......................................................................44 1. Crime of Violence with a Firearm ......................................................................44
2. Crime of Violence in/near Public Transportation ......................................45 2. Crime of Violence in/near Public Transportation ......................................45
3. Crime of Violence Second or Subsequent Conviction ............................46 3. Crime of Violence Second or Subsequent Conviction ............................46
4. Victim Over 60 Years Old .......................................................................................47 4. Victim Over 60 Years Old .......................................................................................47
5. Victim Under 16 Years of Age ..............................................................................48 5. Victim Under 16 Years of Age ..............................................................................48
6. Victim Under 13 Years of Age ..............................................................................48 6. Victim Under 13 Years of Age ..............................................................................48
7. Sentences for Sexual Offenders ..........................................................................49 7. Sentences for Sexual Offenders ..........................................................................49
8. Sentencing for Trafficking of Persons ..............................................................50 8. Sentencing for Trafficking of Persons ..............................................................50
9. Crime of Violence - Impersonating a Police Officer ...................................50 9. Crime of Violence - Impersonating a Police Officer ...................................50
E. Sexual Offender Treatment..........................................................................................51 E. Sexual Offender Treatment..........................................................................................51
F. Sentencing Guidelines ...................................................................................................52 F. Sentencing Guidelines ...................................................................................................52
1. Analysis of the Guidelines .....................................................................................52 1. Analysis of the Guidelines .....................................................................................52
2. Guideline Scores and Points .................................................................................54 2. Guideline Scores and Points .................................................................................54
G. Sentencing Alternatives to Traditional Incarceration......................................54 G. Sentencing Alternatives to Traditional Incarceration......................................54
1. Intermediate Punishment .....................................................................................54 1. Intermediate Punishment .....................................................................................54
2. Order of Probation ...................................................................................................57 2. Order of Probation ...................................................................................................57
9.9 THE SENTENCING HEARING ...........................................................................60 9.9 THE SENTENCING HEARING ...........................................................................60
A. The Defendants Right to Counsel ............................................................................60 A. The Defendants Right to Counsel ............................................................................60
1. Pre-sentence Investigation Report....................................................................60 1. Pre-sentence Investigation Report....................................................................60
B. The Defendants Right of Allocution........................................................................61 B. The Defendants Right of Allocution........................................................................61
C. Victims & Prosecutors Right to Speak at Sentencing .....................................62 C. Victims & Prosecutors Right to Speak at Sentencing .....................................62
9.10 PROBATION VIOLATION HEARING ..............................................................63 9.10 PROBATION VIOLATION HEARING ..............................................................63
Addendum 1: Suggested Colloquy following Guilty Plea or Guilty Verdict .............64 Addendum 1: Suggested Colloquy following Guilty Plea or Guilty Verdict .............64
Addendum 2: Pennsylvanias Maximum Sentencing Provisions................................66 Addendum 2: Pennsylvanias Maximum Sentencing Provisions................................66
Chapter Nine Chapter Nine

Post-Trial Procedures and Sentencing Post-Trial Procedures and Sentencing
This chapter explores issues that a trial court must consider after a sex offender This chapter explores issues that a trial court must consider after a sex offender
has been convicted, by either a jury or bench trial, or by way of a guilty/nolo contendere has been convicted, by either a jury or bench trial, or by way of a guilty/nolo contendere
plea. Many of these post-trial matters must be addressed prior to sentencing, including: plea. Many of these post-trial matters must be addressed prior to sentencing, including:
Review of bail following conviction. Review of bail following conviction.

The preparation and review of a Pre-sentence Investigation Report. The preparation and review of a Pre-sentence Investigation Report.
DNA and venereal disease testing. DNA and venereal disease testing.
Section 9.2 provides the rules for bail following conviction. Next, in section Section 9.2 provides the rules for bail following conviction. Next, in section
9.3, the chapter discusses the necessity and preparation of a pre-sentence report, also 9.3, the chapter discusses the necessity and preparation of a pre-sentence report, also
including instructions if a mental health or other type of examination will provide helpful including instructions if a mental health or other type of examination will provide helpful
information at sentencing. information at sentencing.
Section 9.4 specifies the requirements for mandatory DNA testing under the Section 9.4 specifies the requirements for mandatory DNA testing under the
Pennsylvania DNA Act. Pennsylvania DNA Act.
Section 9.5 provides the rules for the scheduling of the sentencing hearing, and Section 9.5 provides the rules for the scheduling of the sentencing hearing, and
Section 9.6 includes a suggested colloquy for the sentencing hearing. Section 9.6 includes a suggested colloquy for the sentencing hearing.
The requirements of the Sexually Violent Predator Assessment under SORNA1 The requirements of the Sexually Violent Predator Assessment under SORNA1
are listed in Section 9.7. are listed in Section 9.7.
Section 9.8, Sentencing Options, includes detailed information regarding Section 9.8, Sentencing Options, includes detailed information regarding
applicable sentencing options, including maximum and mandatory penalties, as well as applicable sentencing options, including maximum and mandatory penalties, as well as
the ranges under the sentencing guidelines. Section 9.8 begins with a general discussion the ranges under the sentencing guidelines. Section 9.8 begins with a general discussion
of sentencing standards and the use of the sentencing guidelines. The maximum of sentencing standards and the use of the sentencing guidelines. The maximum
allowable penalty for each crime of sexual violence is provided. In section 9.8(D), the allowable penalty for each crime of sexual violence is provided. In section 9.8(D), the
mandatory penalties for crimes involving sexual violence are listed, along with the mandatory penalties for crimes involving sexual violence are listed, along with the
criteria and notice provisions. criteria and notice provisions.
Section 9.9 contains the requirements and lists suggestions to assist at the time Section 9.9 contains the requirements and lists suggestions to assist at the time
of the sentencing hearing. Section 9.10 provides procedures when a parole or probation of the sentencing hearing. Section 9.10 provides procedures when a parole or probation
violation hearing is necessary. violation hearing is necessary.
1 SORNA is the replacement statute for Megans Law. For a detailed discussion on SORNA, see chapter 11, Sex Offender Registration 1 SORNA is the replacement statute for Megans Law. For a detailed discussion on SORNA, see chapter 11, Sex Offender Registration
and Notification. and Notification.
9.2 BAIL FOLLOWING FINDING OF GUILT 9.2 BAIL FOLLOWING FINDING OF GUILT
A. Bail Before Sentencing: Pa.R.Crim.P. 521(A) A. Bail Before Sentencing: Pa.R.Crim.P. 521(A)
There is no right to bail in death penalty and life imprisonment There is no right to bail in death penalty and life imprisonment
sentences. sentences.
After a defendant has been convicted, his right to bail is conditioned on the After a defendant has been convicted, his right to bail is conditioned on the
possible sentences flowing from the conviction(s), and whether sentencing possible sentences flowing from the conviction(s), and whether sentencing
has occurred. When a defendant has been convicted of an offense which is has occurred. When a defendant has been convicted of an offense which is
punishable by death or life imprisonment, the defendant shall not be released punishable by death or life imprisonment, the defendant shall not be released
on bail. Pa.R.Crim.P. 521(A)(1). on bail. Pa.R.Crim.P. 521(A)(1).
If the aggregate of possible sentences does not exceed 3 years, the same If the aggregate of possible sentences does not exceed 3 years, the same
right to bail exists as before the verdict. right to bail exists as before the verdict.
In other cases, the standard used to determine eligibility for bail is based In other cases, the standard used to determine eligibility for bail is based
upon whether the aggregate of all possible sentences of imprisonment on upon whether the aggregate of all possible sentences of imprisonment on
all outstanding verdicts against the defendant in the same judicial district all outstanding verdicts against the defendant in the same judicial district
exceeds three (3) years. exceeds three (3) years.
If the possible sentences do not exceed 3 years aggregate, the defendant has If the possible sentences do not exceed 3 years aggregate, the defendant has
the same right to bail as he had prior to conviction. Pa.R.Crim.P. 521(A)(2) the same right to bail as he had prior to conviction. Pa.R.Crim.P. 521(A)(2)
(a). (a).
If the aggregate of possible sentences exceeds 3 years, the same right If the aggregate of possible sentences exceeds 3 years, the same right
to bail exists unless the sentencing judge uses the following criteria to to bail exists unless the sentencing judge uses the following criteria to
revoke or refuse to set bail: revoke or refuse to set bail:
That no one or more conditions of bail will reasonably ensure that That no one or more conditions of bail will reasonably ensure that
the defendant will appear and comply with the conditions of the bail the defendant will appear and comply with the conditions of the bail
bond; or bond; or
That the defendant poses a danger to any other person or to the That the defendant poses a danger to any other person or to the
community or to himself or herself. community or to himself or herself.
If the possible sentences aggregated exceed 3 years, then the defendant has If the possible sentences aggregated exceed 3 years, then the defendant has
the same right to bail as before conviction unless the sentencing judge finds the same right to bail as before conviction unless the sentencing judge finds
that: (i) that no condition of bail will reasonably ensure compliance with that: (i) that no condition of bail will reasonably ensure compliance with
the bail bond; or (ii) that the defendant poses a threat to the community or the bail bond; or (ii) that the defendant poses a threat to the community or
himself. Pa.R.Crim.P. 521(A)(2)(b). himself. Pa.R.Crim.P. 521(A)(2)(b).
B. After Sentencing: Pa.R.Crim.P. 521(B) B. After Sentencing: Pa.R.Crim.P. 521(B)
If sentence is less than 2 years, the same right to bail exists. If sentence is less than 2 years, the same right to bail exists.
After a defendant has been sentenced, the standard applicable is again After a defendant has been sentenced, the standard applicable is again
predicated on the possible maximum length of sentence of imprisonment. predicated on the possible maximum length of sentence of imprisonment.
If the sentence imposed includes imprisonment of less than 2 years, the If the sentence imposed includes imprisonment of less than 2 years, the
defendant shall have the same right to bail as he did prior to the conviction, defendant shall have the same right to bail as he did prior to the conviction,
unless the Judge modifies the bail order pursuant to Pa.R.Crim.P. 521 (D). unless the Judge modifies the bail order pursuant to Pa.R.Crim.P. 521 (D).
If sentence is more than 2 years, the right to bail is within the judges If sentence is more than 2 years, the right to bail is within the judges
discretion. discretion.
Excluding capital and life imprisonment cases, if the sentence imposed Excluding capital and life imprisonment cases, if the sentence imposed
includes possible imprisonment exceeding 2 years, bail may be granted at includes possible imprisonment exceeding 2 years, bail may be granted at
the discretion of the trial judge. Pa.R.Crim.P. 521(B)(2). the discretion of the trial judge. Pa.R.Crim.P. 521(B)(2).
If set after sentencing, bail must be conditional upon filing of appeal If set after sentencing, bail must be conditional upon filing of appeal
or post-sentence motion. or post-sentence motion.
After the defendant is sentenced and released on bail, the trial judge must After the defendant is sentenced and released on bail, the trial judge must
impose as a condition of bail that the defendant file a post-sentence motion impose as a condition of bail that the defendant file a post-sentence motion
or perfect an appeal within the time required by law. Pa.R.Crim.P. 521(B)(3). or perfect an appeal within the time required by law. Pa.R.Crim.P. 521(B)(3).
In Commonwealth v. McMaster, 730 A.2d 524 (Pa. Super. 1999), appeal In Commonwealth v. McMaster, 730 A.2d 524 (Pa. Super. 1999), appeal
denied, 563 Pa. 613, 757 A.2d 930 (2000), the Defendant was convicted denied, 563 Pa. 613, 757 A.2d 930 (2000), the Defendant was convicted
of involuntary deviate sexual intercourse and incest. Following a remand of involuntary deviate sexual intercourse and incest. Following a remand
for resentencing, the trial court sentenced him to concurrent terms of for resentencing, the trial court sentenced him to concurrent terms of
imprisonment of five to ten years for the IDSI conviction and one to five years imprisonment of five to ten years for the IDSI conviction and one to five years
for the incest conviction. At the resentencing, the trial court granted him for the incest conviction. At the resentencing, the trial court granted him
immediate bail pending parole. The Superior Court reversed on two separate immediate bail pending parole. The Superior Court reversed on two separate
grounds: (1) after noting that a trial court may allow bail pending appeal after grounds: (1) after noting that a trial court may allow bail pending appeal after
a finding of guilt, so long as an avenue of direct appeal is open, the Superior a finding of guilt, so long as an avenue of direct appeal is open, the Superior
Court found that the defendant was no longer eligible for release on bail Court found that the defendant was no longer eligible for release on bail
because the time period for appealing from the re-imposition and affirmance because the time period for appealing from the re-imposition and affirmance
of judgment of sentence had expired2 and (2) the trial court was without of judgment of sentence had expired2 and (2) the trial court was without
authority to parole an individual sentence to a period of incarceration longer authority to parole an individual sentence to a period of incarceration longer
than 2 years.3 than 2 years.3
No protected liberty interest in post-sentence bail if sentence is for No protected liberty interest in post-sentence bail if sentence is for
more than two years. more than two years.
There is no protected liberty interest which requires bail or specific criteria There is no protected liberty interest which requires bail or specific criteria
for the denial of bail in Pennsylvania for defendants who are sentenced to a for the denial of bail in Pennsylvania for defendants who are sentenced to a
term of two years or more. See Owens v. Beard, 829 F.Supp. 736 (M.D. Pa. term of two years or more. See Owens v. Beard, 829 F.Supp. 736 (M.D. Pa.
1993). In a decision which refers to former Rule 4010, which was substantially 1993). In a decision which refers to former Rule 4010, which was substantially
similar to current Rule 521(B), the District Court stated that the rules give similar to current Rule 521(B), the District Court stated that the rules give
trial judges discretion in determining whether to grant or continue bail trial judges discretion in determining whether to grant or continue bail
2 The Superior Court utilized former Rule 4014. 2 The Superior Court utilized former Rule 4014.
3 This authority lies in the Pennsylvania Parole Board pursuant to 61 Pa. Stat 331.21. 3 This authority lies in the Pennsylvania Parole Board pursuant to 61 Pa. Stat 331.21.
pending appeal, and as long as the trial judge provides the reasons for bail pending appeal, and as long as the trial judge provides the reasons for bail
revocation, the decision will not be deemed arbitrary. Id. at 739-740. revocation, the decision will not be deemed arbitrary. Id. at 739-740.
C. Reasons for Refusing or Revoking Bail must be Stated on the Record. C. Reasons for Refusing or Revoking Bail must be Stated on the Record.
In accordance with Pa.R.Crim.P. 521(C), whenever bail is refused or revoked In accordance with Pa.R.Crim.P. 521(C), whenever bail is refused or revoked
under Rule 521, the trial judge must state on the record the reasons for the refusal or under Rule 521, the trial judge must state on the record the reasons for the refusal or
revocation. revocation.
D. Modification of Bail After Verdict or After Sentencing. D. Modification of Bail After Verdict or After Sentencing.
When a defendant is eligible for release on bail after conviction, the existing bail When a defendant is eligible for release on bail after conviction, the existing bail
order may be modified by a Judge of the Court of Common Pleas, upon the Judges own order may be modified by a Judge of the Court of Common Pleas, upon the Judges own
motion or upon motion of counsel for either party with notice to the opposing party, motion or upon motion of counsel for either party with notice to the opposing party,
in open court on the record when all parties are present. Pa.R.Crim.P. 521(D)(1). The in open court on the record when all parties are present. Pa.R.Crim.P. 521(D)(1). The
decision to modify the bail order should be based on the release criteria set forth in decision to modify the bail order should be based on the release criteria set forth in
Rule 523. Release Criteria Rule 523. Release Criteria
(A) To determine whether to release a defendant, and what (A) To determine whether to release a defendant, and what
conditions, if any, to impose, the bail authority shall consider conditions, if any, to impose, the bail authority shall consider
all available information as that information is relevant to the all available information as that information is relevant to the
defendants appearance or nonappearance at subsequent defendants appearance or nonappearance at subsequent
proceedings, or compliance or noncompliance with the proceedings, or compliance or noncompliance with the
conditions of the bail bond, including information about: conditions of the bail bond, including information about:
(1) the nature of the offense charged and any mitigating (1) the nature of the offense charged and any mitigating
or aggravating factors that may bear upon the likelihood or aggravating factors that may bear upon the likelihood
of conviction and possible penalty; of conviction and possible penalty;
(2) the defendants employment status and history, and (2) the defendants employment status and history, and
financial condition; financial condition;
(3) the nature of the defendants family relationships; (3) the nature of the defendants family relationships;
(4) the length and nature of the defendants residence in (4) the length and nature of the defendants residence in
the community, and any past residences; the community, and any past residences;
(5) the defendants age, character, reputation, mental (5) the defendants age, character, reputation, mental
condition, and whether addicted to alcohol or drugs; condition, and whether addicted to alcohol or drugs;
(6) if the defendant has previously been released on bail, (6) if the defendant has previously been released on bail,
whether he or she appeared as required and complied whether he or she appeared as required and complied
with the conditions of the bail bond; with the conditions of the bail bond;
(7) whether the defendant has any record of flight to avoid (7) whether the defendant has any record of flight to avoid
arrest or prosecution, or of escape or attempted escape; arrest or prosecution, or of escape or attempted escape;
(8) the defendants prior criminal record; (8) the defendants prior criminal record;
(9) any use of false identification; and (9) any use of false identification; and
(10) any other factors relevant to whether the defendant (10) any other factors relevant to whether the defendant
will appear as required and comply with the conditions of will appear as required and comply with the conditions of
the bail bond. the bail bond.
(B) The decision of a defendant not to admit culpability or not (B) The decision of a defendant not to admit culpability or not
to assist in an investigation shall not be a reason to impose to assist in an investigation shall not be a reason to impose
additional or more restrictive conditions of bail on the defendant.4 additional or more restrictive conditions of bail on the defendant.4
9.3 PRE-SENTENCE INVESTIGATION REPORT 9.3 PRE-SENTENCE INVESTIGATION REPORT
A. Purpose A. Purpose
Upon conviction of any crime, but typically only in felony cases, the trial court Upon conviction of any crime, but typically only in felony cases, the trial court
may order a pre-sentence investigation report5 to be completed by a probation officer. may order a pre-sentence investigation report5 to be completed by a probation officer.
While the extent of the pre-sentence inquiry may vary depending on the While the extent of the pre-sentence inquiry may vary depending on the
circumstances of the case, [a] more extensive and careful investigation is clearly called for circumstances of the case, [a] more extensive and careful investigation is clearly called for
in felony convictions, particularly where long terms of confinement are contemplated. in felony convictions, particularly where long terms of confinement are contemplated.
Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa. Super. 2000), appeal denied, 563 Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa. Super. 2000), appeal denied, 563
Pa. 672, 759 A.2d 920 (2000), citing Commonwealth v. Martin, 466 Pa. 118, 134 n.26, Pa. 672, 759 A.2d 920 (2000), citing Commonwealth v. Martin, 466 Pa. 118, 134 n.26,
351 A.2d 650, 658 n.26 (1976). In such situations, the trial court should either order a 351 A.2d 650, 658 n.26 (1976). In such situations, the trial court should either order a
pre-sentence report or conduct a full pre-sentence inquiry taking into consideration the pre-sentence report or conduct a full pre-sentence inquiry taking into consideration the
essential and adequate elements of a pre-sentence report. Commonwealth v. Hill, 761 essential and adequate elements of a pre-sentence report. Commonwealth v. Hill, 761
A.2d 1188 (Pa. Super. 2000). A.2d 1188 (Pa. Super. 2000).
The purpose of a pre-sentence investigation report is to provide the trial judge The purpose of a pre-sentence investigation report is to provide the trial judge
with additional information about the defendant, the offenses and to discuss sentencing with additional information about the defendant, the offenses and to discuss sentencing
options so that the trial judge is more informed at sentencing.6 options so that the trial judge is more informed at sentencing.6
As stated by the United States Supreme Court: As stated by the United States Supreme Court:
[O]nce the guilt of the accused has been properly established, [O]nce the guilt of the accused has been properly established,
the sentencing judge, in determining the kind and extent of the sentencing judge, in determining the kind and extent of
4 Pa.R.CRim.P. 523. 4 Pa.R.CRim.P. 523.
5 See Pa.R.CRim.P. 702. The pre-sentence investigation process as specified in the Rules of Criminal Procedure is the preferred method by 5 See Pa.R.CRim.P. 702. The pre-sentence investigation process as specified in the Rules of Criminal Procedure is the preferred method by
which a trial judge should apprise himself or herself of the appropriate information at sentencing. Commonwealth v. Rhodes, 990 A.2d which a trial judge should apprise himself or herself of the appropriate information at sentencing. Commonwealth v. Rhodes, 990 A.2d
6 In accordance with Pa.R.Crim.P. 700, the judge who presided at the trial or who received the plea of guilty or nolo contendere must 6 In accordance with Pa.R.Crim.P. 700, the judge who presided at the trial or who received the plea of guilty or nolo contendere must
typically impose sentence. There is an exception for situations where extraordinary circumstances preclude the trial judges participation. typically impose sentence. There is an exception for situations where extraordinary circumstances preclude the trial judges participation.
punishment to be imposed, is not restricted to evidence derived punishment to be imposed, is not restricted to evidence derived
from the examination and cross-examination of witnesses in from the examination and cross-examination of witnesses in
open court but may, consistently with the Due Process Clause open court but may, consistently with the Due Process Clause
of the Fourteenth Amendment, consider responsible unsworn of the Fourteenth Amendment, consider responsible unsworn
or out-of-court information relative to the circumstances of or out-of-court information relative to the circumstances of
the crime and to the convicted persons life and characteristics. the crime and to the convicted persons life and characteristics.
Williams v. Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959). Williams v. Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959).
The pre-sentence report discloses the defendants criminal history, education, The pre-sentence report discloses the defendants criminal history, education,
jobs, drug and alcohol use, and any mental health issues. It also recites the facts of the jobs, drug and alcohol use, and any mental health issues. It also recites the facts of the
case, and how the crime affected the victim(s). The victim is usually contacted and given case, and how the crime affected the victim(s). The victim is usually contacted and given
an opportunity to have a statement included in or addended to the report. The defendant an opportunity to have a statement included in or addended to the report. The defendant
is typically also given an opportunity to speak to the probation officer and provide a is typically also given an opportunity to speak to the probation officer and provide a
statement for the report; the defendants cooperation during this process is typically statement for the report; the defendants cooperation during this process is typically
reflected in the pre-sentence report. reflected in the pre-sentence report.
The pre-sentence investigation report is, of course, made available for the use The pre-sentence investigation report is, of course, made available for the use
of the sentencing judge, but also must be made available to the prosecutor and defense of the sentencing judge, but also must be made available to the prosecutor and defense
counsel. Pa.R.Crim.P. 703(A)(2). The sentencing court and the criminal clerks office counsel. Pa.R.Crim.P. 703(A)(2). The sentencing court and the criminal clerks office
must maintain the confidentiality of the pre-sentence report and related mental health must maintain the confidentiality of the pre-sentence report and related mental health
reports, which must not appear in the public report. reports, which must not appear in the public report.
B. Requirement to place on the record reasons for decline to order Pre- B. Requirement to place on the record reasons for decline to order Pre-
sentence Report in certain cases sentence Report in certain cases
In accordance with Pa.R.Crim.P. 702(A)(2), the sentencing judge shall place on In accordance with Pa.R.Crim.P. 702(A)(2), the sentencing judge shall place on
the record the reasons for dispensing with the pre-sentence investigation report if the the record the reasons for dispensing with the pre-sentence investigation report if the
judge fails to order a pre-sentence report in any of the following instances: judge fails to order a pre-sentence report in any of the following instances:
1. when incarceration for one year or more is a possible disposition 1. when incarceration for one year or more is a possible disposition
under the applicable sentencing statutes; under the applicable sentencing statutes;
2. when the defendant is less than 21 years old at the time of conviction 2. when the defendant is less than 21 years old at the time of conviction
or entry of a guilty plea; or entry of a guilty plea;
3. when a defendant is a first offender in that he or she has not 3. when a defendant is a first offender in that he or she has not
heretofore been sentenced as an adult. heretofore been sentenced as an adult.
A trial courts failure to provide a statement of reasons for dispensing with a A trial courts failure to provide a statement of reasons for dispensing with a
PSI report, as required by Rule 702(A)(2), presents a substantial question mandating PSI report, as required by Rule 702(A)(2), presents a substantial question mandating
appellate review of the discretionary aspects of the sentence. See Commonwealth v. appellate review of the discretionary aspects of the sentence. See Commonwealth v.
Flowers, 950 A.2d 330, 332 (Pa. Super. 2008); Commonwealth v. Goggins, 748 A.2d Flowers, 950 A.2d 330, 332 (Pa. Super. 2008); Commonwealth v. Goggins, 748 A.2d
C. Contents of Pre-Sentence Report C. Contents of Pre-Sentence Report
The pre-sentence investigation report must include information regarding the The pre-sentence investigation report must include information regarding the
circumstances of the offense and the character of the defendant sufficient to assist the circumstances of the offense and the character of the defendant sufficient to assist the
judge in determining sentence.7 Pa.R.Crim.P. 702(A)(3). judge in determining sentence.7 Pa.R.Crim.P. 702(A)(3).
Essential and adequate elements of PSI Report Essential and adequate elements of PSI Report
The Pennsylvania Supreme Court has specified the minimum content The Pennsylvania Supreme Court has specified the minimum content
of a PSI report. See Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 of a PSI report. See Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650
(1976). The essential and adequate elements of a PSI report include all of (1976). The essential and adequate elements of a PSI report include all of
i. a complete description of the offense and the circumstances i. a complete description of the offense and the circumstances
surrounding it, not limited to aspects developed for the record as part surrounding it, not limited to aspects developed for the record as part
of the determination of guilt; of the determination of guilt;
ii. a full description of any prior criminal record of the offender; ii. a full description of any prior criminal record of the offender;
iii. a description of the educational background of the offender; iii. a description of the educational background of the offender;
iv. a description of the employment background of the offender, including iv. a description of the employment background of the offender, including
any military record and his present employment status and capabilities; any military record and his present employment status and capabilities;
v. the social history of the offender, including family relationships, v. the social history of the offender, including family relationships,
marital status, interests and activities, residence history, and religious marital status, interests and activities, residence history, and religious
affiliations; affiliations;
vi. the offenders medical history and, if desirable, a psychological or vi. the offenders medical history and, if desirable, a psychological or
psychiatric report; psychiatric report;
vii. information about environments to which the offender might return vii. information about environments to which the offender might return
or to which he could be sent should probation be granted; or to which he could be sent should probation be granted;
viii. supplementary reports from clinics, institutions and other social viii. supplementary reports from clinics, institutions and other social
agencies with which the offender has been involved; agencies with which the offender has been involved;
ix. information about special resources which might be available to assist ix. information about special resources which might be available to assist
the offender, such as treatment centers, residential facilities, vocational the offender, such as treatment centers, residential facilities, vocational
training services, special educational facilities, rehabilitative programs training services, special educational facilities, rehabilitative programs
of various institutions to which the offender might be committed, of various institutions to which the offender might be committed,
special programs in the probation department, and other similar special programs in the probation department, and other similar
programs which are particularly relevant to the offenders situation; programs which are particularly relevant to the offenders situation;
x. a summary of the most significant aspects of the report, including x. a summary of the most significant aspects of the report, including
specific recommendations as to the sentence if the sentencing court specific recommendations as to the sentence if the sentencing court
has so requested.8 has so requested.8
7 The information used by a judge in imposing sentence need not necessarily meet the standards of admissible evidence at trial; however, 7 The information used by a judge in imposing sentence need not necessarily meet the standards of admissible evidence at trial; however,
the due process clause does apply to the sentencing procedure. Commonwealth v. Shoemaker, 313 A.2d 342, 347 (Pa. Super. 1973), the due process clause does apply to the sentencing procedure. Commonwealth v. Shoemaker, 313 A.2d 342, 347 (Pa. Super. 1973),
afd, 462 Pa. 342, 341 A.2d 111 (1975). afd, 462 Pa. 342, 341 A.2d 111 (1975).
8 Conceding that there is no requirement for the probation office to make a sentencing recommendation, the Superior Court in 8 Conceding that there is no requirement for the probation office to make a sentencing recommendation, the Superior Court in
Commonwealth v. Bastone, 467 A.2d 1339 (Pa. Super. 1983), stated, however, that if a recommendation is made, it must be disclosed to Commonwealth v. Bastone, 467 A.2d 1339 (Pa. Super. 1983), stated, however, that if a recommendation is made, it must be disclosed to
defendants counsel. defendants counsel.
Martin, 466 Pa. at 134, 351 A.2d at 658. Martin, 466 Pa. at 134, 351 A.2d at 658.
Additional basic information for inclusion in PSI Report Additional basic information for inclusion in PSI Report
A more recent decision of the Superior Court of Pennsylvania, A more recent decision of the Superior Court of Pennsylvania,
Commonwealth v. Monahan, 860 A.2d 180 (Pa. Super. 2004), appeal denied, Commonwealth v. Monahan, 860 A.2d 180 (Pa. Super. 2004), appeal denied,
583 Pa. 688, 878 A.2d 863 (2005), provided additional guidance for the basic 583 Pa. 688, 878 A.2d 863 (2005), provided additional guidance for the basic
information that is required under Rule 702: information that is required under Rule 702:
i. the highest grade of education completed by defendant; i. the highest grade of education completed by defendant;
ii. the defendants occupation and employment history; ii. the defendants occupation and employment history;
iii. the defendants marital status; iii. the defendants marital status;
iv. listing of the defendants children, if any; iv. listing of the defendants children, if any;
v. the official version of the offense; v. the official version of the offense;
vi. the defendants version of the offense; vi. the defendants version of the offense;
vii. a social hereditary history of the defendant, including family vii. a social hereditary history of the defendant, including family
background, living situation, etc. background, living situation, etc.
viii. the defendants physical and mental health; viii. the defendants physical and mental health;
ix. the defendants drug or alcohol use; ix. the defendants drug or alcohol use;
x. the defendants military history; x. the defendants military history;
xi. the defendants financial status; xi. the defendants financial status;
xii. the role of religion in the defendants life, if any; xii. the role of religion in the defendants life, if any;
xiii. the defendants hobbies and leisure activities; xiii. the defendants hobbies and leisure activities;
xiv. the sources of the above information; and xiv. the sources of the above information; and
xv. an evaluation by the pre-sentence investigator. xv. an evaluation by the pre-sentence investigator.
Monahan, 860 A.2d at 185. Monahan, 860 A.2d at 185.
D. Victim Impact Statement D. Victim Impact Statement
When preparing a pre-sentence report, the appropriate agency will contact the When preparing a pre-sentence report, the appropriate agency will contact the
victim of the crime and ask if the victim would like to give a victim impact statement. victim of the crime and ask if the victim would like to give a victim impact statement.
Pa.R.Crim.P. 702(A)(4). This statement goes to the unit providing supervision of the Pa.R.Crim.P. 702(A)(4). This statement goes to the unit providing supervision of the
defendant, the prosecutor, the defense attorney and the judge. The statement lets the defendant, the prosecutor, the defense attorney and the judge. The statement lets the
victim tell the judge about the different kinds of injuries caused by the crime. victim tell the judge about the different kinds of injuries caused by the crime.
Pa.R.Crim.P. 702(A)(4) specifically provides that the pre-sentence investigation Pa.R.Crim.P. 702(A)(4) specifically provides that the pre-sentence investigation
report shall also include a victim impact statement as provided by law. Under the report shall also include a victim impact statement as provided by law. Under the
Pennsylvania Crime Victims Act, 18 Pa.Stat. 11.101 et seq., a victim of a crime is Pennsylvania Crime Victims Act, 18 Pa.Stat. 11.101 et seq., a victim of a crime is
entitled: entitled:
To have opportunity to offer prior comment on the sentencing of To have opportunity to offer prior comment on the sentencing of
a defendant or the disposition of a delinquent child, to include a defendant or the disposition of a delinquent child, to include
the submission of a written and oral victim impact statement the submission of a written and oral victim impact statement
detailing the physical, psychological and economic effects detailing the physical, psychological and economic effects
of the crime on the victim and the victims family. The written of the crime on the victim and the victims family. The written
statement shall be included in any predisposition or presentence statement shall be included in any predisposition or presentence
report submitted to the court. Victim-impact statements shall report submitted to the court. Victim-impact statements shall
be considered by a court when determining the disposition of a be considered by a court when determining the disposition of a
juvenile or sentence of an adult. juvenile or sentence of an adult.
18 Pa.Stat. 11.201(5). The victim can ask for restitution for actual expenditures made 18 Pa.Stat. 11.201(5). The victim can ask for restitution for actual expenditures made
necessary because of the defendants criminal conduct, such as counseling costs, and for necessary because of the defendants criminal conduct, such as counseling costs, and for
conditions of supervision that will help to protect the victim and any others affected by conditions of supervision that will help to protect the victim and any others affected by
the crime. the crime.
Besides writing a statement and being interviewed by the probation office, as Besides writing a statement and being interviewed by the probation office, as
noted above, the victim has a right to speak at the sentencing hearing. If the crime is a noted above, the victim has a right to speak at the sentencing hearing. If the crime is a
misdemeanor, typically no pre-sentence report will be prepared. However, a victim of a misdemeanor, typically no pre-sentence report will be prepared. However, a victim of a
misdemeanor may speak at the sentencing hearing, and may also give a victim impact misdemeanor may speak at the sentencing hearing, and may also give a victim impact
E. Psychiatric or Psychological Examination E. Psychiatric or Psychological Examination
In addition to or in lieu of a pre-sentence investigation report, the trial court may In addition to or in lieu of a pre-sentence investigation report, the trial court may
order mental health evaluations of the defendant to assist in the sentencing process. order mental health evaluations of the defendant to assist in the sentencing process.
Pa.R.Crim.P. 702(b) provides: Pa.R.Crim.P. 702(b) provides:
Psychiatric or Psychological Examination Psychiatric or Psychological Examination

After a finding of guilt and before the imposition of sentence, After a finding of guilt and before the imposition of sentence,
after notice to counsel for both parties, the sentencing judge after notice to counsel for both parties, the sentencing judge
may, as provided by law, order the defendant to undergo a may, as provided by law, order the defendant to undergo a
psychiatric or psychological examination. For this purpose the psychiatric or psychological examination. For this purpose the
defendant may be remanded to any available clinic, hospital, defendant may be remanded to any available clinic, hospital,
institution, or state correctional diagnostic and classification institution, or state correctional diagnostic and classification
center for a period not exceeding 60 days. center for a period not exceeding 60 days.
Although the mental health reports are confidential and must be sealed and not Although the mental health reports are confidential and must be sealed and not
included in the public record maintained by the Criminal Clerks office, the psychiatric or included in the public record maintained by the Criminal Clerks office, the psychiatric or
psychological evaluation ordered under this rule, for sentencing purposes, may be made psychological evaluation ordered under this rule, for sentencing purposes, may be made
available to other professionals or agencies having a legitimate professional interest in available to other professionals or agencies having a legitimate professional interest in
the disposition of the case by order of the sentencing judge. Pa.R.Crim.P. 703(A) & (D). the disposition of the case by order of the sentencing judge. Pa.R.Crim.P. 703(A) & (D).
Additionally, under Rule 703(C), unless otherwise ordered by the sentencing judge, the Additionally, under Rule 703(C), unless otherwise ordered by the sentencing judge, the
mental health reports must be made available to: mental health reports must be made available to:
1. correctional institutions housing the defendant; 1. correctional institutions housing the defendant;
2. departments of probation or parole supervising the defendant; and 2. departments of probation or parole supervising the defendant; and
3. departments of probation or parole preparing a pre-sentence investigation 3. departments of probation or parole preparing a pre-sentence investigation
report regarding the defendant. report regarding the defendant.
This includes out-of-state correctional facilities and parole boards. This includes out-of-state correctional facilities and parole boards.
F. Disclosure of Pre-Sentence Report F. Disclosure of Pre-Sentence Report
Although the Pennsylvania Supreme Court has acknowledged the privilege Although the Pennsylvania Supreme Court has acknowledged the privilege
of confidentiality accorded pre-sentence reports, this privilege is not absolute. In of confidentiality accorded pre-sentence reports, this privilege is not absolute. In
accordance with Pa.R.Crim.P. 703, in order for the report and related mental health accordance with Pa.R.Crim.P. 703, in order for the report and related mental health
evaluations to assist in the sentencing mechanism, prosecutors, defense attorneys, the evaluations to assist in the sentencing mechanism, prosecutors, defense attorneys, the
sentencing judge, and appropriate correctional, probation and parole agencies all have sentencing judge, and appropriate correctional, probation and parole agencies all have
access to a pre-sentence report. access to a pre-sentence report.
If the defendant wishes to contest matters contained in the pre-sentence report, If the defendant wishes to contest matters contained in the pre-sentence report,
at least two methods of rebuttal are readily available. at least two methods of rebuttal are readily available.
First, under Rule 703(B), both the Commonwealth and the defendant have the First, under Rule 703(B), both the Commonwealth and the defendant have the
right to correct any inaccuracy in the report. right to correct any inaccuracy in the report.
Pa.R.CRim.P. 703. Disclosure of Pre-sentence Reports Pa.R.CRim.P. 703. Disclosure of Pre-sentence Reports
... ...
(B) If the defendant or the Commonwealth alleges any factual (B) If the defendant or the Commonwealth alleges any factual
inaccuracy in a report under this rule, the sentencing judge inaccuracy in a report under this rule, the sentencing judge
shall, as to each inaccuracy found, order that the report be shall, as to each inaccuracy found, order that the report be
corrected accordingly. corrected accordingly.
Second, Pennsylvania grants all defendants the right of allocution - the traditional Second, Pennsylvania grants all defendants the right of allocution - the traditional
inquiry by the trial judge as to whether defendant has anything to say before sentence inquiry by the trial judge as to whether defendant has anything to say before sentence
is pronounced. is pronounced.
In Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973), the Supreme In Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973), the Supreme
Court adopted the American Bar Associations Standards for Criminal Justice Sentencing Court adopted the American Bar Associations Standards for Criminal Justice Sentencing
Alternatives and Procedures, regarding disclosure. The current standard is as follows: Alternatives and Procedures, regarding disclosure. The current standard is as follows:
Standard 18-5.7 Disclosure of report to parties Standard 18-5.7 Disclosure of report to parties
(a) The rules of procedure should entitle the parties to copies of (a) The rules of procedure should entitle the parties to copies of
the written presentence report and any similar reports. the written presentence report and any similar reports.
(b) The rules should provide that the information made (b) The rules should provide that the information made
available to the parties must be disclosed sufficiently prior to available to the parties must be disclosed sufficiently prior to
the sentencing hearing to afford a reasonable opportunity for the sentencing hearing to afford a reasonable opportunity for
challenge and verification of material information in the report. challenge and verification of material information in the report.
(c) All communications to a court by the agency responsible (c) All communications to a court by the agency responsible
for preparing the presentence report should be in writing for preparing the presentence report should be in writing
and subject to the right of the parties to know the content of and subject to the right of the parties to know the content of
the report. The rules should prohibit confidential sentencing the report. The rules should prohibit confidential sentencing
recommendations. recommendations.
ABA Standards for Criminal Justice: Sentencing, 3d Ed., Standard 18-5.7. ABA Standards for Criminal Justice: Sentencing, 3d Ed., Standard 18-5.7.
9.4 DNA DATA AND TESTING 9.4 DNA DATA AND TESTING
A. The DNA Act9 A. The DNA Act9
The DNA Act, 44 Pa.Cons.Stat.Ann. 23012336, mandates that persons The DNA Act, 44 Pa.Cons.Stat.Ann. 23012336, mandates that persons
convicted of certain classes of sexual offenses must submit a sample of their DNA for convicted of certain classes of sexual offenses must submit a sample of their DNA for
inclusion in the DNA database. See Singleton v. Lavan, 834 A.2d 672 (Pa. Cmwlth. 2003) inclusion in the DNA database. See Singleton v. Lavan, 834 A.2d 672 (Pa. Cmwlth. 2003)
(discussing the prior act, 42 Pa.Cons.Stat.Ann. 4701-4741, which was repealed and (discussing the prior act, 42 Pa.Cons.Stat.Ann. 4701-4741, which was repealed and
substantially reenacted as the current DNA Act, and holding that it was constitutional). substantially reenacted as the current DNA Act, and holding that it was constitutional).
Every state has enacted a statute creating a DNA (deoxyribonucleic acid) Every state has enacted a statute creating a DNA (deoxyribonucleic acid)
database as a tool in criminal investigations. See generally, Annotation, VALIDITY, database as a tool in criminal investigations. See generally, Annotation, VALIDITY,
CONSTRUCTION, AND OPERATION OF STATE DNA DATABASE STATUTES, 76 A.L.R.5th CONSTRUCTION, AND OPERATION OF STATE DNA DATABASE STATUTES, 76 A.L.R.5th
239 (2000). Although these statutes have frequently been challenged, the challenges 239 (2000). Although these statutes have frequently been challenged, the challenges
usually have been unsuccessful and the statutes found to be within the governments usually have been unsuccessful and the statutes found to be within the governments
compelling interests, such as public safety. compelling interests, such as public safety.
The DNA Act applies to a person who is convicted or adjudicated delinquent for a The DNA Act applies to a person who is convicted or adjudicated delinquent for a
felony sex offense or other specified offense. It provides: felony sex offense or other specified offense. It provides:
1. The DNA sample drawn upon intake to a prison, jail, or juvenile detention 1. The DNA sample drawn upon intake to a prison, jail, or juvenile detention
facility. facility.
If already incarcerated, the DNA sample is drawn immediately after If already incarcerated, the DNA sample is drawn immediately after
sentencing or adjudication, or at any time thereafter. sentencing or adjudication, or at any time thereafter.
2. The DNA sample drawn prior to release from any prison, jail, detention facility 2. The DNA sample drawn prior to release from any prison, jail, detention facility
or institution. or institution.
This chapter applies to incarcerated persons convicted or adjudicated This chapter applies to incarcerated persons convicted or adjudicated
delinquent for a felony sex offense prior to the effective date of this delinquent for a felony sex offense prior to the effective date of this
chapter. chapter.
Release means release, parole, furlough, work release, prerelease or Release means release, parole, furlough, work release, prerelease or
release to any other manner release to any other manner
3. The DNA sample is drawn as a condition of acceptance into ARD as a result of 3. The DNA sample is drawn as a condition of acceptance into ARD as a result of
9 For additional, detailed discussion of the Pennsylvania DNA Act, see CHAPTER 8, Section 8.5(C), DNA DETECTION OF SEXUAL 9 For additional, detailed discussion of the Pennsylvania DNA Act, see CHAPTER 8, Section 8.5(C), DNA DETECTION OF SEXUAL
AND VIOLENT OFFENDERS ACT. AND VIOLENT OFFENDERS ACT.
a criminal charge for a felony sex offense or other specified offense filed on or a criminal charge for a felony sex offense or other specified offense filed on or
after the effective date of this section. after the effective date of this section.
See 44 Pa.Cons.Stat.Ann. 2316. A felony sex offense includes the following: See 44 Pa.Cons.Stat.Ann. 2316. A felony sex offense includes the following:
i. Any sexual offense listed in Chapter 31 of the Crimes Code, 18 Pa.Cons.Stat. i. Any sexual offense listed in Chapter 31 of the Crimes Code, 18 Pa.Cons.Stat.
Ann. 3101-3129; Ann. 3101-3129;
ii. Incest, 18 Pa.Cons.Stat.Ann. 4302; ii. Incest, 18 Pa.Cons.Stat.Ann. 4302;
iii. Prostitution and related offenses, 18 Pa.Cons.Stat.Ann. 5902(c)(1) iii. Prostitution and related offenses, 18 Pa.Cons.Stat.Ann. 5902(c)(1)
(iii)&(iv); (iii)&(iv);
iv. Obscene and other sexual materials and performances if graded as a iv. Obscene and other sexual materials and performances if graded as a
felony, 18 Pa.Cons.Stat.Ann. 5903(a); felony, 18 Pa.Cons.Stat.Ann. 5903(a);
v. Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312; v. Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312;
vi. Unlawful Contact with Minor if the underlying offense is a felony, 18 Pa.Cons. vi. Unlawful Contact with Minor if the underlying offense is a felony, 18 Pa.Cons.
Stat.Ann. 6318; and Stat.Ann. 6318; and
vii. Sexual Exploitation of Children, 18 Pa.Cons.Stat.Ann. 6320. vii. Sexual Exploitation of Children, 18 Pa.Cons.Stat.Ann. 6320.
9.5 SCHEDULING OF SENTENCING 9.5 SCHEDULING OF SENTENCING
A. Time for Sentencing A. Time for Sentencing
As a general rule, the date for sentencing, which should ordinarily be within 90 As a general rule, the date for sentencing, which should ordinarily be within 90
days, should be scheduled at the time of conviction or the entry of a plea of guilty or days, should be scheduled at the time of conviction or the entry of a plea of guilty or
nolo contendere. Therefore, the sentencing hearing should be held within 90 days of nolo contendere. Therefore, the sentencing hearing should be held within 90 days of
conviction or the entry of a plea of guilty or nolo contendere. A limited exception is when conviction or the entry of a plea of guilty or nolo contendere. A limited exception is when
the trial court orders a psychiatric or psychological examination pursuant to Pa.R.Crim.P. the trial court orders a psychiatric or psychological examination pursuant to Pa.R.Crim.P.
702(B), but in no event should the time for sentencing be extended for longer than 30 702(B), but in no event should the time for sentencing be extended for longer than 30
days beyond the original 90 day limit. Pa.R.Crim.P. 704, Comment. days beyond the original 90 day limit. Pa.R.Crim.P. 704, Comment.
Pursuant to Rule 704(A)(2), the trial judge may also grant an extension beyond Pursuant to Rule 704(A)(2), the trial judge may also grant an extension beyond
the 90 day limit for extraordinary circumstances: the 90 day limit for extraordinary circumstances:
When the date for sentencing in a court case must be delayed, When the date for sentencing in a court case must be delayed,
for good cause shown, beyond the time limits set forth in this for good cause shown, beyond the time limits set forth in this
rule, the judge shall include in the record the specific time rule, the judge shall include in the record the specific time
period for the extension.10 period for the extension.10
10 Pa.R.CRim.P. 704(a)(2). 10 Pa.R.CRim.P. 704(a)(2).
As stated, the extension may only be for a specific time period, and the record As stated, the extension may only be for a specific time period, and the record
must reflect the exact time period for the extension. The comment following Rule 704 must reflect the exact time period for the extension. The comment following Rule 704
lists a Megans Law Assessment, 42 Pa.Cons.Stat.Ann. 9795.4 (now SORNA, 42 Pa.Cons. lists a Megans Law Assessment, 42 Pa.Cons.Stat.Ann. 9795.4 (now SORNA, 42 Pa.Cons.
Stat.Ann. 9799.24 ), as a legitimate reason for an extension. Stat.Ann. 9799.24 ), as a legitimate reason for an extension.
B. Remedy for Late Sentencing B. Remedy for Late Sentencing
A defendant who is sentenced in violation of Pa.R.Crim.P. 704s requirement A defendant who is sentenced in violation of Pa.R.Crim.P. 704s requirement
that sentencing ordinarily take place within 90 days of conviction or entry of plea is that sentencing ordinarily take place within 90 days of conviction or entry of plea is
entitled to discharge only where the delay resulted in prejudice to the defendant. entitled to discharge only where the delay resulted in prejudice to the defendant.
Commonwealth v. Anders, 555 Pa. 467, 472-473, 725 A.2d 170, 173 (1999).11 The Commonwealth v. Anders, 555 Pa. 467, 472-473, 725 A.2d 170, 173 (1999).11 The
defendant must demonstrate actual prejudice, Commonwealth v. Diaz, 51 A.3d 884, defendant must demonstrate actual prejudice, Commonwealth v. Diaz, 51 A.3d 884,
891 (Pa. Super. 2012), appeal denied, --- Pa. ---, 76 A.3d 538 (2013), and prejudice should 891 (Pa. Super. 2012), appeal denied, --- Pa. ---, 76 A.3d 538 (2013), and prejudice should
not be presumed by the mere fact of an untimely sentence. Commonwealth v. Fox, 953 not be presumed by the mere fact of an untimely sentence. Commonwealth v. Fox, 953
A number of factors must be analyzed before the trial court should consider A number of factors must be analyzed before the trial court should consider
discharge. To determine whether discharge is appropriate, a trial court should inquire discharge. To determine whether discharge is appropriate, a trial court should inquire
into the following factors: into the following factors:
(1) the length of the delay falling outside of the 90 day provision; (1) the length of the delay falling outside of the 90 day provision;
(2) the reason for the improper delay; (2) the reason for the improper delay;
(3) the defendants timely or untimely assertion of his rights; and (3) the defendants timely or untimely assertion of his rights; and
(4) any resulting prejudice to the interests protected by the (4) any resulting prejudice to the interests protected by the
defendants speedy trial and due process rights. defendants speedy trial and due process rights.
Prejudice should not be presumed by the mere fact of an untimely sentence. Prejudice should not be presumed by the mere fact of an untimely sentence.
The approach of the court should be to determine whether there has in fact been The approach of the court should be to determine whether there has in fact been
prejudice, rather than to presume that prejudice exists. The court should examine the prejudice, rather than to presume that prejudice exists. The court should examine the
totality of the circumstances, as no one factor is necessary, dispositive, or of sufficient totality of the circumstances, as no one factor is necessary, dispositive, or of sufficient
importance to prove a violation. Commonwealth v. Anders, 555 Pa. 467, 473, 725 A.2d importance to prove a violation. Commonwealth v. Anders, 555 Pa. 467, 473, 725 A.2d
170, 173 (1999). See also, Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001); 170, 173 (1999). See also, Commonwealth v. Padden, 783 A.2d 299 (Pa. Super. 2001);
Commonwealth v. Still, 783 A.2d 829 (Pa. Super. 2001). Commonwealth v. Still, 783 A.2d 829 (Pa. Super. 2001).
In Commonwealth v. Diaz, 51 A.3d 884 (Pa. Super. 2012), appeal denied, --- Pa. In Commonwealth v. Diaz, 51 A.3d 884 (Pa. Super. 2012), appeal denied, --- Pa.
---, 76 A.3d 538 (2013), a delay in sentencing of 278 days beyond the date of conviction ---, 76 A.3d 538 (2013), a delay in sentencing of 278 days beyond the date of conviction
warranted a review of the above factors to determine if the delay was prejudicial to warranted a review of the above factors to determine if the delay was prejudicial to
the defendant. 51 A.3d at 889. The Superior Court found, however, that the delays the defendant. 51 A.3d at 889. The Superior Court found, however, that the delays
were caused by a combination of the defendants transfers between state correctional were caused by a combination of the defendants transfers between state correctional
institutions, administrative and scheduling difficulties of the trial court, and finally the institutions, administrative and scheduling difficulties of the trial court, and finally the
illness of the trial judge. Therefore, these reasons did not constitute . . . intentional nor illness of the trial judge. Therefore, these reasons did not constitute . . . intentional nor
inexcusable conduct on the part of the trial court or Commonwealth, and do not rise to inexcusable conduct on the part of the trial court or Commonwealth, and do not rise to
11 The Pennsylvania Supreme Court in Commonwealth v. Anders, 555 Pa. 467, 472-473, 725 A.2d 170, 173 (1999) utilized Pa.R.CRim.P. 11 The Pennsylvania Supreme Court in Commonwealth v. Anders, 555 Pa. 467, 472-473, 725 A.2d 170, 173 (1999) utilized Pa.R.CRim.P.
1405, the predecessor to Rule 704. With the exception of the fact that former Rule 1405 provided that a defendant was to be sentenced 1405, the predecessor to Rule 704. With the exception of the fact that former Rule 1405 provided that a defendant was to be sentenced
within 60 days of conviction, rather than within 90 days as provided in the current rule, Rule 704 and its predecessor are substantially within 60 days of conviction, rather than within 90 days as provided in the current rule, Rule 704 and its predecessor are substantially
similar. similar.
the level of delay without good cause. Id. at 890. the level of delay without good cause. Id. at 890.
1. Rule 704 Not Applicable to Re-sentencing Following Remand 1. Rule 704 Not Applicable to Re-sentencing Following Remand
By its plain language, Pa.R.Crim.P. 704 does not apply to the re-sentencing By its plain language, Pa.R.Crim.P. 704 does not apply to the re-sentencing
process following remand. Commonwealth v. Fox, 953 A.2d 808, 812 (Pa. Super. process following remand. Commonwealth v. Fox, 953 A.2d 808, 812 (Pa. Super.
2008). However, the criteria to determine whether a defendant has suffered 2008). However, the criteria to determine whether a defendant has suffered
actual prejudice due to a delay in re-sentencing following a remand is essentially actual prejudice due to a delay in re-sentencing following a remand is essentially
the same as under Rule 704. Commonwealth v. West, 595 Pa. 483, 500-501, 938 the same as under Rule 704. Commonwealth v. West, 595 Pa. 483, 500-501, 938
A.2d 1034, 1045 (2007). A.2d 1034, 1045 (2007).
9.6 SUGGESTED COLLOQUY FOLLOWING GUILTY PLEA OR GUILTY 9.6 SUGGESTED COLLOQUY FOLLOWING GUILTY PLEA OR GUILTY
VERDICT VERDICT
Addendum 1 is a suggested colloquy following a guilty plea or a verdict of guilty Addendum 1 is a suggested colloquy following a guilty plea or a verdict of guilty
after a trial. The colloquy includes the options of ordering different types of assessments after a trial. The colloquy includes the options of ordering different types of assessments
and evaluations prior to sentencing. and evaluations prior to sentencing.
9.7 SEXUALLY VIOLENT PREDATOR ASSESSMENT12 9.7 SEXUALLY VIOLENT PREDATOR ASSESSMENT12
On December 20, 2011, Pennsylvania enacted legislation that substantially On December 20, 2011, Pennsylvania enacted legislation that substantially
changed the prior law regarding registration requirements for persons convicted of changed the prior law regarding registration requirements for persons convicted of
sexual offenses, previously known as Megans Law III. The new legislation, 2011, Dec. sexual offenses, previously known as Megans Law III. The new legislation, 2011, Dec.
20, P.L. 446, No. 111, 12 (effective December 20, 2012), amended by 2012, July 5, P.L. 20, P.L. 446, No. 111, 12 (effective December 20, 2012), amended by 2012, July 5, P.L.
880, No. 91, 3 (effective December 20, 2012), is codified at 42 Pa.Cons.Stat.Ann. 880, No. 91, 3 (effective December 20, 2012), is codified at 42 Pa.Cons.Stat.Ann.
9799.109799.41, and is known as the Sex Offender Registration and Notification Act 9799.109799.41, and is known as the Sex Offender Registration and Notification Act
or SORNA.13 One of the stated purposes of SORNA is [t]o bring the Commonwealth or SORNA.13 One of the stated purposes of SORNA is [t]o bring the Commonwealth
into substantial compliance with the Adam Walsh Child Protection and Safety Act of into substantial compliance with the Adam Walsh Child Protection and Safety Act of
2006 (Public Law 109-248, 120 Stat. 587). 42 Pa.Cons.Stat.Ann. 9799.10(1); see 2006 (Public Law 109-248, 120 Stat. 587). 42 Pa.Cons.Stat.Ann. 9799.10(1); see
Commonwealth v. Lippert, 85 A.3d 1095 (Pa. Super. 2014), appeal denied, ---Pa.---, 95 Commonwealth v. Lippert, 85 A.3d 1095 (Pa. Super. 2014), appeal denied, ---Pa.---, 95
A.3d 277 (2014). A.3d 277 (2014).
After conviction but before sentencing, a court must order a defendant convicted After conviction but before sentencing, a court must order a defendant convicted
of a sexually violent offense to be assessed by the State Sexual Offenders Assessment of a sexually violent offense to be assessed by the State Sexual Offenders Assessment
Board (Board). As stated above, a sexually violent offense is an offense designated as a Board (Board). As stated above, a sexually violent offense is an offense designated as a
Tier I, Tier II or Tier III sexual offense in 42 Pa.Cons.Stat.Ann. 9799.14. Tier I, Tier II or Tier III sexual offense in 42 Pa.Cons.Stat.Ann. 9799.14.
12 For additional detailed discussion, please refer to CHAPTER 11: SEX OFFENDER REGISTRATION AND NOTIFICATION. 12 For additional detailed discussion, please refer to CHAPTER 11: SEX OFFENDER REGISTRATION AND NOTIFICATION.
13 In Commonwealth v. Miller, 80 A.3d 806, 808 (Pa. Super. 2013), the Superior Court refers to the new law as Megans Law IV. 13 In Commonwealth v. Miller, 80 A.3d 806, 808 (Pa. Super. 2013), the Superior Court refers to the new law as Megans Law IV.
Summary of assessment procedure Summary of assessment procedure
The assessment requirement applies to anyone convicted of an The assessment requirement applies to anyone convicted of an
offense as enumerated in Section 9799.14. Following the order for the offense as enumerated in Section 9799.14. Following the order for the
assessment: assessment:
1) The Board designates a member to conduct the assessment of the 1) The Board designates a member to conduct the assessment of the
individual to determine if the individual should be classified as a individual to determine if the individual should be classified as a
sexually violent predator. 42 Pa.Cons.Stat.Ann. 9799.24(b). sexually violent predator. 42 Pa.Cons.Stat.Ann. 9799.24(b).
2) The Board must submit a written report to the District Attorneys 2) The Board must submit a written report to the District Attorneys
Office. 42 Pa.Cons.Stat.Ann. 9799.24(d). Office. 42 Pa.Cons.Stat.Ann. 9799.24(d).
3) The trial court then conducts a hearing to determine, upon clear 3) The trial court then conducts a hearing to determine, upon clear
and convincing evidence, whether the individual is a sexually violent and convincing evidence, whether the individual is a sexually violent
predator. 42 Pa.Cons.Stat.Ann. 9799.24(e)(3). predator. 42 Pa.Cons.Stat.Ann. 9799.24(e)(3).
a) At the hearing, the Commonwealth and the defendant have the a) At the hearing, the Commonwealth and the defendant have the
opportunity to be heard, the right to call witnesses, the right to opportunity to be heard, the right to call witnesses, the right to
call expert witnesses, and the right to cross-examine witnesses. call expert witnesses, and the right to cross-examine witnesses.
42 Pa.Cons.Stat.Ann. 9799.24(e)(2). 42 Pa.Cons.Stat.Ann. 9799.24(e)(2).
b) The defendant has the right to counsel, and to appointed counsel b) The defendant has the right to counsel, and to appointed counsel
if the defendant cannot afford one. 42 Pa.Cons.Stat.Ann. if the defendant cannot afford one. 42 Pa.Cons.Stat.Ann.
9799.24(e)(2). 9799.24(e)(2).
4) A copy of the order containing the determination of the court must be 4) A copy of the order containing the determination of the court must be
immediately submitted to the individual, district attorney, Pennsylva- immediately submitted to the individual, district attorney, Pennsylva-
nia Board of Probation and Parole, Department of Corrections, board nia Board of Probation and Parole, Department of Corrections, board
and Pennsylvania State Police. 42 Pa.Cons.Stat.Ann. 9799.24(e)(4). and Pennsylvania State Police. 42 Pa.Cons.Stat.Ann. 9799.24(e)(4).
A. The designations of Sexually Violent Offense and Sexually Violent Predator A. The designations of Sexually Violent Offense and Sexually Violent Predator
SORNA provides the following definitions: SORNA provides the following definitions:
9799.12. Definitions 9799.12. Definitions
Sexually violent offense. An offense specified in section Sexually violent offense. An offense specified in section
9799.14 (relating to sexual offenses and tier system) as a Tier 9799.14 (relating to sexual offenses and tier system) as a Tier
I, Tier II or Tier III sexual offense. I, Tier II or Tier III sexual offense.
Sexually violent predator. An individual determined to be Sexually violent predator. An individual determined to be
a sexually violent predator under section 9795.4 (relating to a sexually violent predator under section 9795.4 (relating to
assessments) prior to the effective date of this subchapter or assessments) prior to the effective date of this subchapter or
an individual convicted of an offense specified in: an individual convicted of an offense specified in:
(1) section 9799.14(b)(1), (2), (3), (4), (5), (6), (8), (9), or (1) section 9799.14(b)(1), (2), (3), (4), (5), (6), (8), (9), or
(10) (relating to sexual offenses and tier system) or an (10) (relating to sexual offenses and tier system) or an
attempt, conspiracy or solicitation to commit any offense attempt, conspiracy or solicitation to commit any offense
undersection 9799.14(b)(1), (2), (3), (4), (5), (6), (8), (9), or undersection 9799.14(b)(1), (2), (3), (4), (5), (6), (8), (9), or
(10); (10);
(2) section 9799.14(c)(1), (1.1), (1.2), (2), (3), (4), (5), or (2) section 9799.14(c)(1), (1.1), (1.2), (2), (3), (4), (5), or
(6) or an attempt, conspiracy or solicitation to commit an (6) or an attempt, conspiracy or solicitation to commit an
offense under section 9799.14(c)(1), (1.1), (1.2), (2), (3), (4), offense under section 9799.14(c)(1), (1.1), (1.2), (2), (3), (4),
(5) or (6); or (5) or (6); or
(3) section 9799.14(d)(1), (2), (3), (4), (5), (6), (7), (8) or (3) section 9799.14(d)(1), (2), (3), (4), (5), (6), (7), (8) or
(9) or an attempt, conspiracy or solicitation to commit an (9) or an attempt, conspiracy or solicitation to commit an
offense under section 9799.14(d)(1), (2), (3), (4), (5), (6), offense under section 9799.14(d)(1), (2), (3), (4), (5), (6),
(7), (8) or (9) (7), (8) or (9)
who, on or after the effective date of this subchapter, is who, on or after the effective date of this subchapter, is
determined to be a sexually violent predator under section determined to be a sexually violent predator under section
9799.24 (relating to assessments) due to a mental abnormality 9799.24 (relating to assessments) due to a mental abnormality
or personality disorder that makes the individual likely to engage or personality disorder that makes the individual likely to engage
in predatory sexually violent offenses. The term includes an in predatory sexually violent offenses. The term includes an
individual determined to be a sexually violent predator or similar individual determined to be a sexually violent predator or similar
designation where the determination occurred in another designation where the determination occurred in another
jurisdiction, a foreign country or by court martial following a jurisdiction, a foreign country or by court martial following a
judicial or administrative determination pursuant to a process judicial or administrative determination pursuant to a process
similar to that under section 9799.24. similar to that under section 9799.24.
1. Sexually Violent Offense 1. Sexually Violent Offense
After conviction but before sentencing, a court must order a defendant After conviction but before sentencing, a court must order a defendant
convicted of a sexually violent offense to be assessed by the State Sexual Offenders convicted of a sexually violent offense to be assessed by the State Sexual Offenders
Assessment Board. As stated above, a sexually violent offense is an offense Assessment Board. As stated above, a sexually violent offense is an offense
designated as a Tier I, Tier II or Tier III sexual offense in 42 Pa.Cons.Stat.Ann. designated as a Tier I, Tier II or Tier III sexual offense in 42 Pa.Cons.Stat.Ann.
9799.14. 9799.14.
The following crimes under Pennsylvania law would require an assessment The following crimes under Pennsylvania law would require an assessment
prior to sentencing: prior to sentencing:
(A) Tier I Sexual Offenses: (A) Tier I Sexual Offenses:

The following offenses, or an attempt, conspiracy or solicitation to The following offenses, or an attempt, conspiracy or solicitation to
commit one of the following offenses, are categorized as Tier I Sexual commit one of the following offenses, are categorized as Tier I Sexual
Offenses, Offenses,
Unlawful Restraint Unlawful Restraint

False Imprisonment False Imprisonment

Interference with Custody of Children Interference with Custody of Children

Luring a Child into a Motor Vehicle or Structure Luring a Child into a Motor Vehicle or Structure
Institutional Sexual Assault Institutional Sexual Assault

Indecent Assault Indecent Assault

Corruption of Minors Corruption of Minors

Sexual Abuse of Children Sexual Abuse of Children

Invasion of Privacy Invasion of Privacy

18 Pa.Cons.Stat.Ann. 7507.1 18 Pa.Cons.Stat.Ann. 7507.1
(B) Tier II Sexual Offenses: (B) Tier II Sexual Offenses:

The following offenses, or an attempt, conspiracy or solicitation to commit The following offenses, or an attempt, conspiracy or solicitation to commit
one of the following offenses, are categorized as Tier II Sexual Offenses, one of the following offenses, are categorized as Tier II Sexual Offenses,
Statutory Sexual Assault Statutory Sexual Assault

18 Pa.Cons.Stat.Ann. 3122.1(a)(2) 18 Pa.Cons.Stat.Ann. 3122.1(a)(2)
Institutional Sexual Assault of a Minor Institutional Sexual Assault of a Minor

18 Pa.Cons.Stat.Ann. 3124.2(a.2) and (a.3) 18 Pa.Cons.Stat.Ann. 3124.2(a.2) and (a.3)
Indecent Assault, Certain Cases of Indecent Assault, Certain Cases of

18 Pa.Cons.Stat.Ann. 3126(a)(2), (3), (4), (5), (6) or (8) 18 Pa.Cons.Stat.Ann. 3126(a)(2), (3), (4), (5), (6) or (8)
Prostitution and Related Offenses Prostitution and Related Offenses

18 Pa.Cons.Stat.Ann. 5902(b.1) 18 Pa.Cons.Stat.Ann. 5902(b.1)
Obscene and other sexual materials and performances Obscene and other sexual materials and performances
18 Pa.Cons.Stat.Ann. 5903(a)(3)(ii), (4)(ii), (5)(ii) or (6) 18 Pa.Cons.Stat.Ann. 5903(a)(3)(ii), (4)(ii), (5)(ii) or (6)
Sexual Abuse of Children Sexual Abuse of Children

18 Pa.Cons.Stat.Ann. 6312(b) and (c) 18 Pa.Cons.Stat.Ann. 6312(b) and (c)
Unlawful Contact with Minor Unlawful Contact with Minor

Sexual Exploitation of Children Sexual Exploitation of Children

(C) Tier III Sexual Offenses: (C) Tier III Sexual Offenses:
The following offenses, or an attempt, conspiracy or solicitation to The following offenses, or an attempt, conspiracy or solicitation to
commit one of the following offenses, are categorized as Tier III Sexual commit one of the following offenses, are categorized as Tier III Sexual
Offenses, Offenses,
Kidnapping Kidnapping
18 Pa.Cons.Stat.Ann. 2901(a.1) 18 Pa.Cons.Stat.Ann. 2901(a.1)
Rape Rape
Statutory Sexual Assault Statutory Sexual Assault

Involuntary Deviate Sexual Intercourse Involuntary Deviate Sexual Intercourse

Sexual Assault Sexual Assault

Institutional Sexual Assault of a Minor Institutional Sexual Assault of a Minor

18 Pa.Cons.Stat.Ann. 3124.2(a.1) 18 Pa.Cons.Stat.Ann. 3124.2(a.1)
Aggravated Indecent Assault Aggravated Indecent Assault

Indecent Assault where victim is under 13 years of age Indecent Assault where victim is under 13 years of age
Incest of a Minor Incest of a Minor

2. The designation of Sexually Violent Predator 2. The designation of Sexually Violent Predator
The sexually violent predator (SVP) designation is reserved for those The sexually violent predator (SVP) designation is reserved for those
who have been: who have been:
Determined to be a sexually violent predator under the prior law; or Determined to be a sexually violent predator under the prior law; or
Convicted of a sexually violent offense as set forth in 42 Pa.Cons.Stat. Convicted of a sexually violent offense as set forth in 42 Pa.Cons.Stat.
Ann. 9799.14 and, Ann. 9799.14 and,
Determined to be a sexually violent predator under 42 Pa.Cons.Stat. Determined to be a sexually violent predator under 42 Pa.Cons.Stat.
Ann. 9799.24 (relating to assessments) due to a mental abnormality Ann. 9799.24 (relating to assessments) due to a mental abnormality
or personality disorder that makes the person likely to engage in or personality disorder that makes the person likely to engage in
predatory sexually violent offenses. predatory sexually violent offenses.
The SVP designation also applies to offenders determined to be sexual violent The SVP designation also applies to offenders determined to be sexual violent
predators in another jurisdiction (state, territory, or federal), or by court martial. predators in another jurisdiction (state, territory, or federal), or by court martial.
Finding of mental abnormality or personality disorder Finding of mental abnormality or personality disorder
As stated by the Superior Court in Commonwealth v. Plucinski, 868 As stated by the Superior Court in Commonwealth v. Plucinski, 868
A.2d 20 (Pa. Super. 2005)(using definition from Megans Law II which is A.2d 20 (Pa. Super. 2005)(using definition from Megans Law II which is
identical to definition of mental abnormality in SORNA): identical to definition of mental abnormality in SORNA):
Under Megans Law II, a SVP is defined as a person Under Megans Law II, a SVP is defined as a person
who has been convicted of a sexually violent offense... who has been convicted of a sexually violent offense...
and who is determined to be a sexually violent predator and who is determined to be a sexually violent predator
under section 9795.4 due to a mental abnormality under section 9795.4 due to a mental abnormality
or personality disorder that makes the person likely or personality disorder that makes the person likely
to engage in predatory sexually violent offenses. 42 to engage in predatory sexually violent offenses. 42
Pa.C.S.A. 9792. Mental abnormality is defined as [a] Pa.C.S.A. 9792. Mental abnormality is defined as [a]
congenital or acquired condition of a person that affects congenital or acquired condition of a person that affects
the emotional or volitional capacity of the person in a the emotional or volitional capacity of the person in a
manner that predisposes that person to the commission manner that predisposes that person to the commission
of criminal sexual acts to a degree that makes the person of criminal sexual acts to a degree that makes the person
a menace to the health and safety of other persons. Id. a menace to the health and safety of other persons. Id.
Id. at 25 26 (emphasis added). Id. at 25 26 (emphasis added).
Finding of predatory Finding of predatory
Predatory is defined as [a]n act directed at a stranger or at a person Predatory is defined as [a]n act directed at a stranger or at a person
with whom a relationship has been initiated, established, maintained or with whom a relationship has been initiated, established, maintained or
promoted, in whole or in part, in order to facilitate or support victimiza- promoted, in whole or in part, in order to facilitate or support victimiza-
tion. 42 Pa.Cons.Stat.Ann. 9799.12. tion. 42 Pa.Cons.Stat.Ann. 9799.12.
B. The Sexually Violent Predator Assessment B. The Sexually Violent Predator Assessment
1. Order for Assessment 1. Order for Assessment
In accordance with 42 Pa.Cons.Stat.Ann. 9799.24(a), before sentencing In accordance with 42 Pa.Cons.Stat.Ann. 9799.24(a), before sentencing
and within ten days of the date of conviction, the trial judge must order an and within ten days of the date of conviction, the trial judge must order an
assessment for a defendant convicted of a sexually violent offense, as specified assessment for a defendant convicted of a sexually violent offense, as specified
under 42 Pa.Cons.Stat.Ann. 9799.14. The assessment must be completed by under 42 Pa.Cons.Stat.Ann. 9799.14. The assessment must be completed by
the State Sexual Offenders Assessment Board (Board).14 the State Sexual Offenders Assessment Board (Board).14
The assessment is mandatory for any defendant convicted of a predicate The assessment is mandatory for any defendant convicted of a predicate
offense.15 offense.15
The Board members are appointed by the Governor and are to be The Board members are appointed by the Governor and are to be
comprised of psychiatrists, psychologists, and criminal justice experts, each of comprised of psychiatrists, psychologists, and criminal justice experts, each of
whom is an expert in the field of treatment of sexual offenders.16 whom is an expert in the field of treatment of sexual offenders.16
2. The SVP Assessment 2. The SVP Assessment
The salient inquiry in determining SVP status is identification of the The salient inquiry in determining SVP status is identification of the
impetus behind the commission of the offense; that is, whether it proceeds impetus behind the commission of the offense; that is, whether it proceeds
from a mental defect or personality disorder, or another motivating factor. The from a mental defect or personality disorder, or another motivating factor. The
answer to that question determines, at least theoretically, the extent to which the answer to that question determines, at least theoretically, the extent to which the
offender is likely to reoffend. Commonwealth v. Price, 876 A.2d 988, 995 (Pa. offender is likely to reoffend. Commonwealth v. Price, 876 A.2d 988, 995 (Pa.
Super. 2005), appeal denied, 587 Pa. 706, 897 A.2d 1184 (2006), cert. denied, 549 Super. 2005), appeal denied, 587 Pa. 706, 897 A.2d 1184 (2006), cert. denied, 549
U.S. 902, 127 S.Ct. 224, 166 L.Ed.2d 179 (2006) (decided under Megans Law II). U.S. 902, 127 S.Ct. 224, 166 L.Ed.2d 179 (2006) (decided under Megans Law II).
SORNA provides the criteria by which such likelihood may be gauged. 42 SORNA provides the criteria by which such likelihood may be gauged. 42
Pa.Cons.Stat.Ann. 9799.24(b). Pa.Cons.Stat.Ann. 9799.24(b).
A member of the Board, as designated by its administrative officer, A member of the Board, as designated by its administrative officer,
conducts the assessment of the defendant to determine if the individual should be conducts the assessment of the defendant to determine if the individual should be
classified as a sexually violent predator. The evaluator must examine numerous classified as a sexually violent predator. The evaluator must examine numerous
factors listed in 9799.24(b) regarding the current offense, including the nature factors listed in 9799.24(b) regarding the current offense, including the nature
of the sexual contact with the victim. of the sexual contact with the victim.
The evaluator shall also examine the prior offense history to determine The evaluator shall also examine the prior offense history to determine
the defendants prior criminal record, and whether the defendant completed any the defendants prior criminal record, and whether the defendant completed any
prior sentences, or whether the defendant participated in available programs prior sentences, or whether the defendant participated in available programs
for sexual offenders.17 With regards to the defendants characteristics, the for sexual offenders.17 With regards to the defendants characteristics, the
evaluator should determine the individuals age, any use of illegal drugs, and evaluator should determine the individuals age, any use of illegal drugs, and
any mental illness, mental disability, or mental abnormality.18 The evaluator any mental illness, mental disability, or mental abnormality.18 The evaluator
shall also examine any other factors reasonably related to the risk of re-offense. shall also examine any other factors reasonably related to the risk of re-offense.
Commonwealth v. Plucinski, 868 A.2d 20, 25-26 (Pa. Super. 2005). Commonwealth v. Plucinski, 868 A.2d 20, 25-26 (Pa. Super. 2005).
Copies of records or information requested by the Board in connection Copies of records or information requested by the Board in connection
with the court-ordered assessment shall be provided by any state, county, and with the court-ordered assessment shall be provided by any state, county, and
14 As under the prior law, the order for assessment must be sent to the administrative officer of the board within ten days of the date of 14 As under the prior law, the order for assessment must be sent to the administrative officer of the board within ten days of the date of
conviction. Commonwealth v. Maldonado, 576 Pa. 101, 838 A.2d 710, 712 n.2 (Pa. 2003); 42 Pa.ConS.Stat.ann. 9799.24(a). conviction. Commonwealth v. Maldonado, 576 Pa. 101, 838 A.2d 710, 712 n.2 (Pa. 2003); 42 Pa.ConS.Stat.ann. 9799.24(a).
15 Commonwealth v. Baird, 856 A.2d 114, 118 (Pa. Super. 2004). 15 Commonwealth v. Baird, 856 A.2d 114, 118 (Pa. Super. 2004).
16 42 Pa.ConS.Stat.ann. 9799.35. 16 42 Pa.ConS.Stat.ann. 9799.35.
17 42 Pa.ConS.Stat.ann. 9799.24(b)(2). 17 42 Pa.ConS.Stat.ann. 9799.24(b)(2).
18 42 Pa.ConS.Stat.ann. 9799.24(C). 18 42 Pa.ConS.Stat.ann. 9799.24(C).
local agency, office, or entity in this Commonwealth.19 local agency, office, or entity in this Commonwealth.19
The Board must submit a written report containing its assessment to the The Board must submit a written report containing its assessment to the
district attorney no later than 90 days from the date of the defendants conviction. district attorney no later than 90 days from the date of the defendants conviction.
3. The SVP Assessment Hearing 3. The SVP Assessment Hearing
After the Board issues its assessment and recommendation, the district After the Board issues its assessment and recommendation, the district
attorney may request a hearing before the trial court to determine whether attorney may request a hearing before the trial court to determine whether
the individual should be adjudicated as a sexually violent predator. In order to the individual should be adjudicated as a sexually violent predator. In order to
schedule the hearing, the district attorney must file a praecipe.20 On occasion, schedule the hearing, the district attorney must file a praecipe.20 On occasion,
in situations when the assessment is attached to a pre-sentence investigation in situations when the assessment is attached to a pre-sentence investigation
report, the trial court will schedule the hearing after reviewing the assessment.21 report, the trial court will schedule the hearing after reviewing the assessment.21
In any event, the defendant and district attorney must be given notice of In any event, the defendant and district attorney must be given notice of
the hearing and an opportunity to be heard, the right to call witnesses, the right the hearing and an opportunity to be heard, the right to call witnesses, the right
to call expert witnesses and the right to cross-examine witnesses.22 to call expert witnesses and the right to cross-examine witnesses.22
In addition, the defendant has the right to counsel and to have a lawyer In addition, the defendant has the right to counsel and to have a lawyer
appointed to represent him if he cannot afford one. If the defendant makes appointed to represent him if he cannot afford one. If the defendant makes
arrangements for another expert assessment, the defendant must provide a copy arrangements for another expert assessment, the defendant must provide a copy
of the expert assessment to the district attorney prior to the hearing. 42 Pa.Cons. of the expert assessment to the district attorney prior to the hearing. 42 Pa.Cons.
Stat.Ann. 9799.24(e)(2). Stat.Ann. 9799.24(e)(2).
The Commonwealth bears the burden of proving through clear and The Commonwealth bears the burden of proving through clear and
convincing evidence that the defendant meets the statutory definition of SVP. 42 convincing evidence that the defendant meets the statutory definition of SVP. 42
Pa.Cons.Stat.Ann. 9799.24(e)(3); Commonwealth v. Maldonado, 576 Pa. 101, Pa.Cons.Stat.Ann. 9799.24(e)(3); Commonwealth v. Maldonado, 576 Pa. 101,
838 A.2d 710 (2003) (decided under Megans Law). The clear and convincing 838 A.2d 710 (2003) (decided under Megans Law). The clear and convincing
standard requires evidence that is so clear, direct, weighty, and convincing as to standard requires evidence that is so clear, direct, weighty, and convincing as to
enable the [trier of fact] to come to a clear conviction, without hesitancy, of the enable the [trier of fact] to come to a clear conviction, without hesitancy, of the
truth of the precise facts [in] issue. Id., 838 A.2d at 715 (citation omitted). truth of the precise facts [in] issue. Id., 838 A.2d at 715 (citation omitted).
4. Classification as Sexually Violent Predator 4. Classification as Sexually Violent Predator
The trial court must be satisfied by clear and convincing evidence that the The trial court must be satisfied by clear and convincing evidence that the
individual meets the criteria to be designated as a SVP. 42 Pa.Cons.Stat.Ann. individual meets the criteria to be designated as a SVP. 42 Pa.Cons.Stat.Ann.
9799.24(e)(3). As aforesaid, the Commonwealth has the burden of proof. 9799.24(e)(3). As aforesaid, the Commonwealth has the burden of proof.
Upon appeal of the trial courts determination that the defendant should Upon appeal of the trial courts determination that the defendant should
be classified as a SVP, the appellate court will utilize a de novo standard of be classified as a SVP, the appellate court will utilize a de novo standard of
review and the scope of review is plenary. Commonwealth v. Bishop, 936 A.2d review and the scope of review is plenary. Commonwealth v. Bishop, 936 A.2d
19 42 Pa.ConS.Stat.ann. 9799.24(b)(3). 19 42 Pa.ConS.Stat.ann. 9799.24(b)(3).
20 42 Pa.ConS.Stat.ann. 9799.24(e). The district attorney must send the defendants counsel a copy of the assessment along with the 20 42 Pa.ConS.Stat.ann. 9799.24(e). The district attorney must send the defendants counsel a copy of the assessment along with the
praecipe. praecipe.
21 42 Pa.ConS.Stat.ann. 9799.24(f): Presentence investigation.--In all cases where the board has performed an assessment pursuant 21 42 Pa.ConS.Stat.ann. 9799.24(f): Presentence investigation.--In all cases where the board has performed an assessment pursuant
to this section, copies of the report shall be provided to the agency preparing the presentence investigation. to this section, copies of the report shall be provided to the agency preparing the presentence investigation.
22 42 Pa.ConS.Stat.ann. 9799.24(e). 22 42 Pa.ConS.Stat.ann. 9799.24(e).
1136, 1141 (Pa. Super. 2007), appeal denied, 597 Pa. 710, 951 A.2d 1159 (2008) 1136, 1141 (Pa. Super. 2007), appeal denied, 597 Pa. 710, 951 A.2d 1159 (2008)
(decided under Megans Law). The evidence will be considered in the light most (decided under Megans Law). The evidence will be considered in the light most
favorable to the party who prevailed before the trial court. Id. favorable to the party who prevailed before the trial court. Id.
A sexually violent predator (SVP) is defined as an individual who has A sexually violent predator (SVP) is defined as an individual who has
been convicted of a sexually violent offense as set forth in Section 9712 and been convicted of a sexually violent offense as set forth in Section 9712 and
Section 9799.14 and who is determined to be a sexually violent predator under Section 9799.14 and who is determined to be a sexually violent predator under
9799.24 (relating to assessments) due to a mental abnormality or personality 9799.24 (relating to assessments) due to a mental abnormality or personality
disorder that makes the individual likely to engage in predatory sexually violent disorder that makes the individual likely to engage in predatory sexually violent
offenses. 42 Pa.Cons.Stat.Ann. 9799.12. offenses. 42 Pa.Cons.Stat.Ann. 9799.12.
Although decided under the now expired Megans Law III, the Superior Although decided under the now expired Megans Law III, the Superior
Court, in Commonwealth v. Stephens, 74 A.3d 1034 (Pa. Super. 20130) provided Court, in Commonwealth v. Stephens, 74 A.3d 1034 (Pa. Super. 20130) provided
guidance on the findings of mental abnormality or personality disorder as guidance on the findings of mental abnormality or personality disorder as
follows: follows:
[T]he evidence must show that the defendant suffers [T]he evidence must show that the defendant suffers
from a congenital or acquired condition ... that affects the from a congenital or acquired condition ... that affects the
emotional or volitional capacity of the person in a manner emotional or volitional capacity of the person in a manner
that predisposes that person to the commission of criminal that predisposes that person to the commission of criminal
sexual acts to a degree that makes the person a menace to the sexual acts to a degree that makes the person a menace to the
health and safety of other persons. Moreover, there must health and safety of other persons. Moreover, there must
be a showing that the defendants conduct was predatory. be a showing that the defendants conduct was predatory.
Predatory conduct is defined as an act directed at a stranger Predatory conduct is defined as an act directed at a stranger
or at a person with whom a relationship has been instituted, or at a person with whom a relationship has been instituted,
established, maintained, or promoted, in whole or in part, established, maintained, or promoted, in whole or in part,
in order to facilitate or support victimization. Furthermore, in order to facilitate or support victimization. Furthermore,
in reaching a determination, we must examine the driving in reaching a determination, we must examine the driving
force behind the commission of these acts, as well as looking force behind the commission of these acts, as well as looking
at the offenders propensity to re-offend, an opinion about at the offenders propensity to re-offend, an opinion about
which the Commonwealths expert is required to opine. which the Commonwealths expert is required to opine.
(quotations and citations omitted). However, the risk of re- (quotations and citations omitted). However, the risk of re-
offending is but one factor to be considered when making offending is but one factor to be considered when making
an assessment; it is not an independent element. an assessment; it is not an independent element.
Id. at 1038 (citations omitted). Id. at 1038 (citations omitted).
D. Reporting Requirements D. Reporting Requirements
If the trial court concludes that the defendant should be classified as a sexually If the trial court concludes that the defendant should be classified as a sexually
violent predator, and the individual was convicted of a Tier I, II or III sexual offense, violent predator, and the individual was convicted of a Tier I, II or III sexual offense,
the defendant is subject to lifetime registration pursuant to 42 Pa.Cons.Stat.Ann. the defendant is subject to lifetime registration pursuant to 42 Pa.Cons.Stat.Ann.
9799.15(a)&(d).23 9799.15(a)&(d).23
23 42 Pa.ConS.Stat.ann. 9799.36 mandates that a sexually violent predator who is not incarcerated to attend counseling sessions at least 23 42 Pa.ConS.Stat.ann. 9799.36 mandates that a sexually violent predator who is not incarcerated to attend counseling sessions at least
monthly, and that he pay the fees assessed from such sessions if he is able to do so. monthly, and that he pay the fees assessed from such sessions if he is able to do so.
If there is no finding of SVP, the defendant is subject to registration for a period If there is no finding of SVP, the defendant is subject to registration for a period
of either 15 years, 25 years, or the remainder of his life, depending upon the predicate of either 15 years, 25 years, or the remainder of his life, depending upon the predicate
offense. 42 Pa.Cons.Stat.Ann. 9799.15. See also, Commonwealth v. Maldonado, 576 offense. 42 Pa.Cons.Stat.Ann. 9799.15. See also, Commonwealth v. Maldonado, 576
Pa. 101, 838 A.2d 710, 712 (2003) (decided under Megans Law). Pa. 101, 838 A.2d 710, 712 (2003) (decided under Megans Law).
E. Requirements at Time of Sentencing - Notification E. Requirements at Time of Sentencing - Notification
In accordance with 42 Pa.Cons.Stat.Ann. 9799.23, the sentencing court must In accordance with 42 Pa.Cons.Stat.Ann. 9799.23, the sentencing court must
inform sexually violent predators at the time of sentencing of the provisions of SORNA inform sexually violent predators at the time of sentencing of the provisions of SORNA
that apply to them. SORNA provides that all sexual offenders must register in accordance that apply to them. SORNA provides that all sexual offenders must register in accordance
with the law regardless of a failure by the trial court to order the registration or provide with the law regardless of a failure by the trial court to order the registration or provide
the information listed in this section. 42 Pa.Cons.Stat.Ann. 9799.23(b). The court must the information listed in this section. 42 Pa.Cons.Stat.Ann. 9799.23(b). The court must
inform the offender or sexually violent predator of: inform the offender or sexually violent predator of:
their duty to register and provide the information required for each registration, their duty to register and provide the information required for each registration,
including verification; including verification;
their duty to inform the Pennsylvania State Police of changes in residence, their duty to inform the Pennsylvania State Police of changes in residence,
employment, employment location or school enrollment; employment, employment location or school enrollment;
their duty to inform the Pennsylvania State Police of becoming employed or their duty to inform the Pennsylvania State Police of becoming employed or
enrolled as a student if the person has not previously provided that information enrolled as a student if the person has not previously provided that information
to the Pennsylvania State Police; to the Pennsylvania State Police;
their duty to register with a new law enforcement agency if the offender or their duty to register with a new law enforcement agency if the offender or
sexually violent predator moves to another state no later than ten days after sexually violent predator moves to another state no later than ten days after
establishing residence in another state; establishing residence in another state;
their duty to register with the appropriate authorities in any state in which the their duty to register with the appropriate authorities in any state in which the
offender or sexually violent predator is employed, carries on a vocation or is a offender or sexually violent predator is employed, carries on a vocation or is a
student if the state requires such registration. student if the state requires such registration.
The sentencing judge must also order the fingerprints, palm prints, DNA sample The sentencing judge must also order the fingerprints, palm prints, DNA sample
and photograph of the individual or sexually violent predator to be provided to the and photograph of the individual or sexually violent predator to be provided to the
Pennsylvania State Police. See 42 Pa.Cons.Stat.Ann. 9799.23(a)(4). Pennsylvania State Police. See 42 Pa.Cons.Stat.Ann. 9799.23(a)(4).
Lastly, the sentencing judge must require the offender or sexually violent Lastly, the sentencing judge must require the offender or sexually violent
predator to read and sign a form which verifies that the duty to register under SORNA predator to read and sign a form which verifies that the duty to register under SORNA
was explained. If the offender or sexually violent predator is incapable of reading, the was explained. If the offender or sexually violent predator is incapable of reading, the
court must certify that the duty to register was explained and the offender or sexually court must certify that the duty to register was explained and the offender or sexually
violent predator indicated an understanding of the duty. See 42 Pa.Cons.Stat.Ann. violent predator indicated an understanding of the duty. See 42 Pa.Cons.Stat.Ann.
9799.23(a)(5). 9799.23(a)(5).
F. Appellate Review F. Appellate Review
1. Plenary Review 1. Plenary Review
The Pennsylvania Supreme Court noted that [q]uestions of evidentiary The Pennsylvania Supreme Court noted that [q]uestions of evidentiary
sufficiency present questions of law; thus, [the] standard of review is de novo sufficiency present questions of law; thus, [the] standard of review is de novo
and [the] scope of review is plenary. Commonwealth v. Meals, 590 Pa. 110, 119, and [the] scope of review is plenary. Commonwealth v. Meals, 590 Pa. 110, 119,
912 A.2d 213, 218 (2006) (citations omitted) (decided under Megans Law II). 912 A.2d 213, 218 (2006) (citations omitted) (decided under Megans Law II).
Upon an appeal of a finding of SVP, the evidence must be viewed in the Upon an appeal of a finding of SVP, the evidence must be viewed in the
light most favorable to the Commonwealth. Commonwealth v. Plucinski, 868 light most favorable to the Commonwealth. Commonwealth v. Plucinski, 868
A.2d 20, 25 (Pa. Super. 2005). The reviewing court may not re-weigh the evidence A.2d 20, 25 (Pa. Super. 2005). The reviewing court may not re-weigh the evidence
or substitute its judgment for that of the trial court. Id. See also Commonwealth or substitute its judgment for that of the trial court. Id. See also Commonwealth
v. Meals, 590 Pa. 110, 127, 912 A.2d 213, 223 (2006). v. Meals, 590 Pa. 110, 127, 912 A.2d 213, 223 (2006).
2. Clear and Convincing Standard 2. Clear and Convincing Standard
[I]n reviewing the sufficiency of the evidence regarding the determination [I]n reviewing the sufficiency of the evidence regarding the determination
of SVP status, [the appellate court] will reverse the trial court only if the of SVP status, [the appellate court] will reverse the trial court only if the
Commonwealth has not presented clear and convincing evidence sufficient to Commonwealth has not presented clear and convincing evidence sufficient to
enable the trial court to determine that each element required by the statute enable the trial court to determine that each element required by the statute
has been satisfied. Commonwealth v. Moody, 843 A.2d 402, 408 (Pa. Super. has been satisfied. Commonwealth v. Moody, 843 A.2d 402, 408 (Pa. Super.
2004) (quoting Commonwealth v. Krouse, 799 A.2d 835, 837 (Pa. Super. 2002) 2004) (quoting Commonwealth v. Krouse, 799 A.2d 835, 837 (Pa. Super. 2002)
(en banc), appeal denied, 573 Pa. 671, 821 A.2d 586 (2003); Commonwealth v. (en banc), appeal denied, 573 Pa. 671, 821 A.2d 586 (2003); Commonwealth v.
Haughwout, 837 A.2d 480, 484 (Pa. Super. 2003).24 The clear and convincing Haughwout, 837 A.2d 480, 484 (Pa. Super. 2003).24 The clear and convincing
standard requires evidence that is so clear, direct, weighty and convincing as to standard requires evidence that is so clear, direct, weighty and convincing as to
enable [the trier of fact] to come to a clear conviction, without hesitancy, of the enable [the trier of fact] to come to a clear conviction, without hesitancy, of the
truth of the precise facts [in] issue. Commonwealth v. Maldonado, 576 Pa. 101, truth of the precise facts [in] issue. Commonwealth v. Maldonado, 576 Pa. 101,
109, 838 A.2d 710, 715 (2003) (quoting Rohm and Haas Co. v. Continental Gas 109, 838 A.2d 710, 715 (2003) (quoting Rohm and Haas Co. v. Continental Gas
Co., 566 Pa. 464, 476, 781 A.2d 1172, 1179 (2001)). Co., 566 Pa. 464, 476, 781 A.2d 1172, 1179 (2001)).
9.8 SENTENCING OPTIONS 9.8 SENTENCING OPTIONS
A. General Standards A. General Standards
Under Pennsylvanias Sentencing Code, 42 Pa.Cons.Stat.Ann. 9701 et seq., Under Pennsylvanias Sentencing Code, 42 Pa.Cons.Stat.Ann. 9701 et seq.,
as a general rule, in determining the sentence to be imposed upon the defendant, the as a general rule, in determining the sentence to be imposed upon the defendant, the
sentencing court must consider and employ one or more of the following alternatives, sentencing court must consider and employ one or more of the following alternatives,
and may impose them consecutively or concurrently: and may impose them consecutively or concurrently:
24 42 Pa.ConS.Stat.ann. 9799.24(e)(3) mandates that the Commonwealth prove, by clear and convincing evidence, that the defendant is 24 42 Pa.ConS.Stat.ann. 9799.24(e)(3) mandates that the Commonwealth prove, by clear and convincing evidence, that the defendant is
a sexually violent predator at the hearing held prior to sentencing. a sexually violent predator at the hearing held prior to sentencing.
An order of probation; An order of probation;

A determination of guilt without further penalty; A determination of guilt without further penalty;
Partial confinement; Partial confinement;
Total confinement; Total confinement;
A fine; A fine;
County intermediate punishment; County intermediate punishment;
State intermediate punishment. State intermediate punishment.
42 Pa.Cons.Stat.Ann. 9721(a). The sentencing courts standards for selecting from the 42 Pa.Cons.Stat.Ann. 9721(a). The sentencing courts standards for selecting from the
above alternatives should conform to the general principle that the sentence imposed above alternatives should conform to the general principle that the sentence imposed
calls for confinement that is consistent with calls for confinement that is consistent with
1) the protection of the public, 1) the protection of the public,

2) the gravity of the offense as it relates to the impact on the life of the victim and 2) the gravity of the offense as it relates to the impact on the life of the victim and
on the community, on the community,
3) the rehabilitation of the defendant, and 3) the rehabilitation of the defendant, and
4) the sentencing guidelines. 4) the sentencing guidelines.
42 Pa.Cons.Stat.Ann. 9721(b); see also Commonwealth v. Robertson, 874 A.2d 1200, 42 Pa.Cons.Stat.Ann. 9721(b); see also Commonwealth v. Robertson, 874 A.2d 1200,
1212 (Pa. Super. 2005). 1212 (Pa. Super. 2005).
As stated above, the sentencing court must consider the guidelines adopted by the As stated above, the sentencing court must consider the guidelines adopted by the
Pennsylvania Commission on Sentencing, contained in Chapter 303 of the Pennsylvania Pennsylvania Commission on Sentencing, contained in Chapter 303 of the Pennsylvania
Code: Code:
The court shall consider the sentencing guidelines in The court shall consider the sentencing guidelines in
determining the appropriate sentence for offenders convicted determining the appropriate sentence for offenders convicted
of, or pleading guilty or nolo contendere to, felonies and of, or pleading guilty or nolo contendere to, felonies and
misdemeanors. Where crimes merge for sentencing purposes, misdemeanors. Where crimes merge for sentencing purposes,
the court shall consider the sentencing guidelines only on the the court shall consider the sentencing guidelines only on the
offense assigned the higher offense Gravity score. offense assigned the higher offense Gravity score.
204 Pa.Code 303.1(a). See also, 42 Pa.Cons.Stat.Ann. 2151.1 - 2155 (governing 204 Pa.Code 303.1(a). See also, 42 Pa.Cons.Stat.Ann. 2151.1 - 2155 (governing
creation and adoption of the Sentencing Guidelines); 204 Pa.Code 303.1 303.18c creation and adoption of the Sentencing Guidelines); 204 Pa.Code 303.1 303.18c
(Pennsylvania Sentencing Guidelines). (Pennsylvania Sentencing Guidelines).
The Sentencing Guidelines enumerate aggravating and mitigating circumstances; The Sentencing Guidelines enumerate aggravating and mitigating circumstances;
assign scores based on (1) a defendants criminal record and (2) on the seriousness of the assign scores based on (1) a defendants criminal record and (2) on the seriousness of the
crime; and then specify a range of punishments for each crime. In every case in which the crime; and then specify a range of punishments for each crime. In every case in which the
court imposes a sentence for a felony or misdemeanor, modifies a sentence, resentences court imposes a sentence for a felony or misdemeanor, modifies a sentence, resentences
an offender following revocation of probation, county intermediate punishment or State an offender following revocation of probation, county intermediate punishment or State
intermediate punishment or resentences following remand, the court shall make as a intermediate punishment or resentences following remand, the court shall make as a
part of the record, and disclose in open court at the time of sentencing, a statement of part of the record, and disclose in open court at the time of sentencing, a statement of
the reason or reasons for the sentence imposed. 42 Pa.Cons.Stat.Ann. 9721(b); 204 the reason or reasons for the sentence imposed. 42 Pa.Cons.Stat.Ann. 9721(b); 204
Pa.Code 303.1(d). Pa.Code 303.1(d).
Trial courts retain broad discretion in sentencing matters. Commonwealth v. Trial courts retain broad discretion in sentencing matters. Commonwealth v.
Antidormi, --- A.23 ---, 2014 WL 255492 (Pa. Super. 2014). The Sentencing Guidelines Antidormi, --- A.23 ---, 2014 WL 255492 (Pa. Super. 2014). The Sentencing Guidelines
are not mandatory, and therefore the trial court may sentence defendants outside the are not mandatory, and therefore the trial court may sentence defendants outside the
Guidelines. Guidelines.
In cases where the court imposes a sentence outside the sentencing guidelines In cases where the court imposes a sentence outside the sentencing guidelines
adopted by the Pennsylvania Commission on Sentencing, the court shall provide a adopted by the Pennsylvania Commission on Sentencing, the court shall provide a
contemporaneous written statement of the reasons for deviating from the guidelines. contemporaneous written statement of the reasons for deviating from the guidelines.
42 Pa.Cons.Stat.Ann. 9721(b); 204 Pa.Code 303.1(d). However, this requirement 42 Pa.Cons.Stat.Ann. 9721(b); 204 Pa.Code 303.1(d). However, this requirement
is satisfied when the judge states his reasons for the sentence on the record and in the is satisfied when the judge states his reasons for the sentence on the record and in the
defendants presence. defendants presence.
The trial court stated sufficient reasons to justify the sentence in the following The trial court stated sufficient reasons to justify the sentence in the following
cases: cases:
Commonwealth v. Mawhinney, 915 A.2d 107 (Pa. Super. 2006), appeal Commonwealth v. Mawhinney, 915 A.2d 107 (Pa. Super. 2006), appeal
Before imposing sentence, the trial court heard argument and a Before imposing sentence, the trial court heard argument and a
statement from the defendant. It was held that the trial court stated sufficient statement from the defendant. It was held that the trial court stated sufficient
reasons for imposing consecutive sentences following convictions for reasons for imposing consecutive sentences following convictions for
involuntary deviate sexual intercourse (IDSI), sexual assault, endangering involuntary deviate sexual intercourse (IDSI), sexual assault, endangering
the welfare of a child, and related crimes, where trial court stated that it had the welfare of a child, and related crimes, where trial court stated that it had
considered the presentence report, the Sentencing Guidelines, and all of the considered the presentence report, the Sentencing Guidelines, and all of the
trial testimony in fashioning the sentence. trial testimony in fashioning the sentence.
Commonwealth v. Twitty, 876 A.2d 433 (Pa. Super. Commonwealth v. Twitty, 876 A.2d 433 (Pa. Super.
Following convictions of rape, involuntary deviate sexual intercourse Following convictions of rape, involuntary deviate sexual intercourse
and related charges, the trial court, prior to announcing the sentence, in a and related charges, the trial court, prior to announcing the sentence, in a
lengthy statement, noted: (1) the harm done to the victim; (2) the effect the lengthy statement, noted: (1) the harm done to the victim; (2) the effect the
crimes had on the victims family, particularly because Appellant was the father crimes had on the victims family, particularly because Appellant was the father
of the victims half-siblings; (3) the fact that the entire family was in therapy of the victims half-siblings; (3) the fact that the entire family was in therapy
as a result of Appellants actions; (4) Appellants attempts to manipulate the as a result of Appellants actions; (4) Appellants attempts to manipulate the
criminal justice system, and the victim throughout the trial by, on multiple criminal justice system, and the victim throughout the trial by, on multiple
occasions, agreeing to plead guilty and then changing his mind at the last occasions, agreeing to plead guilty and then changing his mind at the last
minute; and (5) Appellants complete lack of remorse, including his statement minute; and (5) Appellants complete lack of remorse, including his statement
at sentencing, during which he called the young victim a liar. It was held that at sentencing, during which he called the young victim a liar. It was held that
the sentencing court more than adequately stated its reasons for sentencing the sentencing court more than adequately stated its reasons for sentencing
Appellant to the statutory maximum, and the Superior Court found that the Appellant to the statutory maximum, and the Superior Court found that the
record substantiates the trial courts sentencing determinations. record substantiates the trial courts sentencing determinations.
When the sentencing court imposes a sentence that deviates significantly from When the sentencing court imposes a sentence that deviates significantly from
guideline recommendations, it must demonstrate that the case under consideration guideline recommendations, it must demonstrate that the case under consideration
is compellingly different from the typical case of the same offense or point to other is compellingly different from the typical case of the same offense or point to other
sentencing factors that are germane to the case before the court. Commonwealth v. sentencing factors that are germane to the case before the court. Commonwealth v.
Robertson, 874 A.2d 1200, 1213 (Pa. Super. 2005). Robertson, 874 A.2d 1200, 1213 (Pa. Super. 2005).
Failure to comply with these general standards is grounds for vacating the Failure to comply with these general standards is grounds for vacating the
sentence and resentencing the defendant. sentence and resentencing the defendant.
B. Statutory Penalties for Crimes of Sexual Violence B. Statutory Penalties for Crimes of Sexual Violence
Pennsylvanias statutory scheme specifies the grade and degree of each particular Pennsylvanias statutory scheme specifies the grade and degree of each particular
crime. Moreover, the General Assembly has provided the statutory maximum legal crime. Moreover, the General Assembly has provided the statutory maximum legal
sentences for each grade and degree of crime: sentences for each grade and degree of crime:

Fines Fines
A person who has been convicted of an offense may be A person who has been convicted of an offense may be
sentenced to pay a fine not exceeding: sentenced to pay a fine not exceeding:
(1) $50,000, when the conviction is of murder or (1) $50,000, when the conviction is of murder or
attempted murder. attempted murder.
(2) $25,000, when the conviction is of a felony of the (2) $25,000, when the conviction is of a felony of the
first or second degree. first or second degree.
(3) $15,000, when the conviction is of a felony of the (3) $15,000, when the conviction is of a felony of the
third degree. third degree.
(4) $10,000, when the conviction is of a misdemeanor (4) $10,000, when the conviction is of a misdemeanor
of the first degree. of the first degree.
(5) $5,000, when the conviction is of a misdemeanor of (5) $5,000, when the conviction is of a misdemeanor of
the second degree. the second degree.
(6) $2,500, when the conviction is of a misdemeanor of (6) $2,500, when the conviction is of a misdemeanor of
the third degree. the third degree.
(7) $300, when the conviction is of a summary offense (7) $300, when the conviction is of a summary offense
for which no higher fine is established. for which no higher fine is established.
(8) Any higher amount equal to double the pecuniary (8) Any higher amount equal to double the pecuniary
gain derived from the offense by the offender. gain derived from the offense by the offender.
(9) Any higher or lower amount specifically authorized (9) Any higher or lower amount specifically authorized
by statute. by statute.

Sentence of Imprisonment for Felony Sentence of Imprisonment for Felony
Except as provided in 42 Pa.C.S. 9714 (relating to Except as provided in 42 Pa.C.S. 9714 (relating to
sentences for second and subsequent offenses), a person sentences for second and subsequent offenses), a person
who has been convicted of a felony may be sentenced to who has been convicted of a felony may be sentenced to
imprisonment as follows: imprisonment as follows:
(1) In the case of a felony of the first degree, for a term (1) In the case of a felony of the first degree, for a term
which shall be fixed by the court at not more than 20 which shall be fixed by the court at not more than 20
years. years.
(2) In the case of a felony of the second degree, for a (2) In the case of a felony of the second degree, for a
term which shall be fixed by the court at not more than term which shall be fixed by the court at not more than
ten years. ten years.
(3) In the case of a felony of the third degree, for a (3) In the case of a felony of the third degree, for a
term which shall be fixed by the court at not more than term which shall be fixed by the court at not more than
seven years. seven years.

Sentence of Imprisonment for Misdemeanors Sentence of Imprisonment for Misdemeanors
A person who has been convicted of a misdemeanor may A person who has been convicted of a misdemeanor may
be sentenced to imprisonment for a definite term which be sentenced to imprisonment for a definite term which
shall be fixed by the court and shall be not more than: shall be fixed by the court and shall be not more than:
(1) Five years in the case of a misdemeanor of the first (1) Five years in the case of a misdemeanor of the first
degree. degree.
(2) Two years in the case of a misdemeanor of the (2) Two years in the case of a misdemeanor of the
second degree. second degree.
(3) One year in the case of a misdemeanor of the third (3) One year in the case of a misdemeanor of the third
degree. degree.

Sentence of Imprisonment for Summary Offenses Sentence of Imprisonment for Summary Offenses
A person who has been convicted of a summary offense A person who has been convicted of a summary offense
may be sentenced to imprisonment for a term which shall may be sentenced to imprisonment for a term which shall
be fixed by the court at not more than 90 days. be fixed by the court at not more than 90 days.
If the trial court imposes a sentence of total confinement, the sentence must set a If the trial court imposes a sentence of total confinement, the sentence must set a
maximum period of incarceration and a minimum period which must not exceed one- maximum period of incarceration and a minimum period which must not exceed one-
half of the maximum sentence imposed. 42 Pa.Cons.Stat.Ann. 9756(b). The following half of the maximum sentence imposed. 42 Pa.Cons.Stat.Ann. 9756(b). The following
is a list of the statutory maximum penalties permitted for crimes of sexual violence. For is a list of the statutory maximum penalties permitted for crimes of sexual violence. For
ease of use, an abbreviated definition is also included for each crime. ease of use, an abbreviated definition is also included for each crime.
1. RAPE: 18 Pa.Cons.Stat.Ann. 3121 1. RAPE: 18 Pa.Cons.Stat.Ann. 3121
3121(a): Rape 3121(a): Rape

Grading: a felony of the first degree. Grading: a felony of the first degree.
Definition: includes sexual intercourse with a victim: Definition: includes sexual intercourse with a victim:
1) by forcible compulsion; 1) by forcible compulsion;
2) by threat of forcible compulsion that would have prevented resistance 2) by threat of forcible compulsion that would have prevented resistance
3) who was unconscious or where the defendant knew that the victim was 3) who was unconscious or where the defendant knew that the victim was
unaware that the sexual intercourse was occurring; unaware that the sexual intercourse was occurring;
4) where the defendant had substantially impaired the victims power 4) where the defendant had substantially impaired the victims power
to appraise or control his or her conduct by administering or employing, to appraise or control his or her conduct by administering or employing,
means for the purpose of preventing resistance; or means for the purpose of preventing resistance; or
5) who suffers from a mental disability which rendered the victim 5) who suffers from a mental disability which rendered the victim
incapable of consent. incapable of consent.
Penalty: Maximum incarceration sentence and the maximum fine: shall Penalty: Maximum incarceration sentence and the maximum fine: shall
not exceed 20 years and $25,000. not exceed 20 years and $25,000.
3121 (b): Rape by substantial impairment of victim 3121 (b): Rape by substantial impairment of victim
Definition: where the defendant engages in sexual intercourse with the Definition: where the defendant engages in sexual intercourse with the
victim and has substantially impaired the victims power to appraise or victim and has substantially impaired the victims power to appraise or
control his or her conduct by administering or employing, without the control his or her conduct by administering or employing, without the
knowledge of the victim, any substance for the purpose of preventing knowledge of the victim, any substance for the purpose of preventing
resistance through the inducement of euphoria, memory loss and any resistance through the inducement of euphoria, memory loss and any
other effect of this substance. other effect of this substance.
Penalty: Maximum incarceration sentence and maximum fine: in Penalty: Maximum incarceration sentence and maximum fine: in
addition to the penalty provided for by 3121 (a), an additional period addition to the penalty provided for by 3121 (a), an additional period
of incarceration which shall not exceed an additional 10 years confinement of incarceration which shall not exceed an additional 10 years confinement
and an additional fine which shall not exceed $100,000. The aggregate and an additional fine which shall not exceed $100,000. The aggregate
sentence for the offense shall therefore be not more than 30 years and the sentence for the offense shall therefore be not more than 30 years and the
fine shall not exceed $125,000. fine shall not exceed $125,000.
3121 (c): Rape of a child 3121 (c): Rape of a child

Definition: where the defendant engaged in sexual intercourse with a Definition: where the defendant engaged in sexual intercourse with a
victim who was less than 13 years old. victim who was less than 13 years old.
not exceed 40 years [see 18 Pa.Cons.Stat.Ann. 3121(e)(1)] and $25,000. not exceed 40 years [see 18 Pa.Cons.Stat.Ann. 3121(e)(1)] and $25,000.
3121 (d): Rape of a child with serious bodily injury 3121 (d): Rape of a child with serious bodily injury
Definition: where the defendant violated this section and the victim is Definition: where the defendant violated this section and the victim is
under 13 years of age and suffered serious bodily injury in the course of under 13 years of age and suffered serious bodily injury in the course of
Penalty: Maximum incarceration sentence and the maximum fine: up Penalty: Maximum incarceration sentence and the maximum fine: up
to life imprisonment [see 18 Pa.Cons.Stat.Ann. 3121(e)(2)] and not to to life imprisonment [see 18 Pa.Cons.Stat.Ann. 3121(e)(2)] and not to
exceed $25,000. exceed $25,000.
2. STATUTORY SEXUAL ASSAULT: 18 Pa.Cons.Stat.Ann. 3122.1 2. STATUTORY SEXUAL ASSAULT: 18 Pa.Cons.Stat.Ann. 3122.1
3122.1(a): Statutory Sexual Assault 3122.1(a): Statutory Sexual Assault

Grading: a felony of the second degree. Grading: a felony of the second degree.
complainant who is not married to the defendant and is under the age of complainant who is not married to the defendant and is under the age of
16 years, and the defendant is either 16 years, and the defendant is either
four years older but less than eight years older than the complainant; four years older but less than eight years older than the complainant;
or or
eight years older but less than 11 years older than the complainant. eight years older but less than 11 years older than the complainant.
3122.1(b): Statutory Sexual Assault-Older Defendant 3122.1(b): Statutory Sexual Assault-Older Defendant
complainant who is not married to the defendant and is under the age of 16 complainant who is not married to the defendant and is under the age of 16
years, and the defendant is 11 or more years older than the complainant. years, and the defendant is 11 or more years older than the complainant.
3. INVOLUNTARY DEVIATE SEXUAL INTERCOURSE: 18 Pa.Cons.Stat.Ann. 3. INVOLUNTARY DEVIATE SEXUAL INTERCOURSE: 18 Pa.Cons.Stat.Ann.
3123 3123
3123(a): Involuntary Deviate Sexual Intercourse 3123(a): Involuntary Deviate Sexual Intercourse
Definition: includes deviate sexual intercourse with a victim: Definition: includes deviate sexual intercourse with a victim:
3) who was unconscious or where the person knew that the victim was 3) who was unconscious or where the person knew that the victim was
unaware that the sexual intercourse was occurring; unaware that the sexual intercourse was occurring;
4) where the defendant had substantially impaired the victims power 4) where the defendant had substantially impaired the victims power
to appraise or control his or her conduct by administering or employing, to appraise or control his or her conduct by administering or employing,
without the knowledge of the victim, drugs, intoxicants or other means without the knowledge of the victim, drugs, intoxicants or other means
for the purpose of preventing resistance; for the purpose of preventing resistance;
5) who suffers from a mental disability which rendered him or her 5) who suffers from a mental disability which rendered him or her
incapable of consent; or incapable of consent; or
6) who was less than 16 years of age and the defendant is four or more 6) who was less than 16 years of age and the defendant is four or more
years older than the victim and the victim and defendant were not married years older than the victim and the victim and defendant were not married
to each other. to each other.
3123(b): IDSI with a Child 3123(b): IDSI with a Child

Definition: where the defendant engaged in deviate sexual intercourse Definition: where the defendant engaged in deviate sexual intercourse
with a victim who was less than 13 years of age. with a victim who was less than 13 years of age.
not exceed 40 years [see 18 Pa.Cons.Stat.Ann. 3123(d)(1)] and $25,000. not exceed 40 years [see 18 Pa.Cons.Stat.Ann. 3123(d)(1)] and $25,000.
3123(c): IDSI with a Child with Serious Bodily Injury 3123(c): IDSI with a Child with Serious Bodily Injury
Definition: where the defendant violated this section, the victim was less Definition: where the defendant violated this section, the victim was less
than 13 years of age, and the victim suffered serious bodily injury in the than 13 years of age, and the victim suffered serious bodily injury in the
course of the offense. course of the offense.
Penalty: Maximum incarceration sentence and the maximum fine: up Penalty: Maximum incarceration sentence and the maximum fine: up
to life imprisonment [see 18 Pa.Cons.Stat.Ann. 3123(d)(2)] and not to to life imprisonment [see 18 Pa.Cons.Stat.Ann. 3123(d)(2)] and not to
exceed $25,000. exceed $25,000.
4. SEXUAL ASSAULT: 18 Pa.Cons.Stat.Ann. 3124.1 4. SEXUAL ASSAULT: 18 Pa.Cons.Stat.Ann. 3124.1
Definition: where the defendant engaged in sexual intercourse or deviate Definition: where the defendant engaged in sexual intercourse or deviate
sexual intercourse with a complainant without the complainants consent. sexual intercourse with a complainant without the complainants consent.
5. INSTITUTIONAL SEXUAL ASSAULT: 18 Pa.Cons.Stat.Ann. 3124.2 5. INSTITUTIONAL SEXUAL ASSAULT: 18 Pa.Cons.Stat.Ann. 3124.2
3124.2(a): Institutional Sexual Assault 3124.2(a): Institutional Sexual Assault

Grading: a felony of the third degree. Grading: a felony of the third degree.
Definition: where the defendant was an employee or agent of the Definition: where the defendant was an employee or agent of the
Department of Corrections or a county correctional authority, youth Department of Corrections or a county correctional authority, youth
development center, youth forestry camp, State or county juvenile development center, youth forestry camp, State or county juvenile
detention facility, other licensed residential facility serving children and detention facility, other licensed residential facility serving children and
youth, or mental health or mental retardation facility or institution, and youth, or mental health or mental retardation facility or institution, and
engaged in sexual intercourse, deviate sexual intercourse or indecent engaged in sexual intercourse, deviate sexual intercourse or indecent
contact with a victim who was an inmate, detainee, patient or resident. contact with a victim who was an inmate, detainee, patient or resident.
3124.2(a.1): Institutional Sexual Assault of a Minor 3124.2(a.1): Institutional Sexual Assault of a Minor
Definition: where the defendant was an employee or agent of the Definition: where the defendant was an employee or agent of the
Department of Corrections or a county correctional authority, youth Department of Corrections or a county correctional authority, youth
development center, youth forestry camp, State or county juvenile development center, youth forestry camp, State or county juvenile
detention facility, other licensed residential facility serving children and detention facility, other licensed residential facility serving children and
youth, or mental health or mental retardation facility or institution, and youth, or mental health or mental retardation facility or institution, and
engaged in sexual intercourse, deviate sexual intercourse or indecent engaged in sexual intercourse, deviate sexual intercourse or indecent
contact with a victim who was an inmate, detainee, patient or resident contact with a victim who was an inmate, detainee, patient or resident
who is under 18 years of age. who is under 18 years of age.
3124.2(a.2): Institutional Sexual Assault at a School 3124.2(a.2): Institutional Sexual Assault at a School
Definition: where the defendant is a volunteer or an employee of a school Definition: where the defendant is a volunteer or an employee of a school
or any other person who has direct contact with a student at a school when or any other person who has direct contact with a student at a school when
he engages in sexual intercourse, deviate sexual intercourse or indecent he engages in sexual intercourse, deviate sexual intercourse or indecent
contact with a student of the school. contact with a student of the school.
3124.2(a.3): Institutional Sexual Assault Child Care 3124.2(a.3): Institutional Sexual Assault Child Care
Definition: where the defendant is a volunteer or an employee of a Definition: where the defendant is a volunteer or an employee of a
center for children when he engages in sexual intercourse, deviate sexual center for children when he engages in sexual intercourse, deviate sexual
intercourse or indecent contact with a child who is receiving services at intercourse or indecent contact with a child who is receiving services at
the center. the center.
6. AGGRAVATED INDECENT ASSAULT: 18 Pa.Cons.Stat.Ann. 3125 6. AGGRAVATED INDECENT ASSAULT: 18 Pa.Cons.Stat.Ann. 3125
3125(a): Aggravated Indecent Assault 3125(a): Aggravated Indecent Assault

Definition: where the defendant engaged in penetration, however slight, Definition: where the defendant engaged in penetration, however slight,
of the genitals or anus of a complainant with a part of the defendants of the genitals or anus of a complainant with a part of the defendants
body for any purpose other than good faith medical, hygienic or law body for any purpose other than good faith medical, hygienic or law
enforcement procedures, and if the defendant does so: enforcement procedures, and if the defendant does so:
1) without the victims consent; 1) without the victims consent;
4) when the victim was unconscious or the defendant knew that the victim 4) when the victim was unconscious or the defendant knew that the victim
was unaware that the penetration was occurring; was unaware that the penetration was occurring;
5) when the defendant had substantially impaired the victims power to 5) when the defendant had substantially impaired the victims power to
without the knowledge of the victim, drugs, intoxicants, or other means without the knowledge of the victim, drugs, intoxicants, or other means
6) when the victim suffers from a mental disability which rendered him or 6) when the victim suffers from a mental disability which rendered him or
her incapable of consent; her incapable of consent;
7) when the victim was less than 13 years of age; or 7) when the victim was less than 13 years of age; or
8) when the victim was less than 16 years of age and the defendant is 8) when the victim was less than 16 years of age and the defendant is
four or more years older than the victim and the victim and the defendant four or more years older than the victim and the victim and the defendant
were not married to each other. were not married to each other.
3125(b): Aggravated Indecent Assault of a Child 3125(b): Aggravated Indecent Assault of a Child
Definition: where the defendant violated 3125 (a)(1), (2), (3), (4), (5), Definition: where the defendant violated 3125 (a)(1), (2), (3), (4), (5),
or (6) and the victim was less than 13 years of age. or (6) and the victim was less than 13 years of age.
7. INDECENT ASSAULT: 18 Pa.Cons.Stat.Ann. 3126 7. INDECENT ASSAULT: 18 Pa.Cons.Stat.Ann. 3126
3126(a)(1) or (8): Indecent Assault as an M-2 3126(a)(1) or (8): Indecent Assault as an M-2
Grading: A misdemeanor of the second degree. Grading: A misdemeanor of the second degree.
Definition: where the defendant had indecent contact with a victim Definition: where the defendant had indecent contact with a victim
or caused the victim to have indecent contact with the defendant, or or caused the victim to have indecent contact with the defendant, or
intentionally causes the complainant to come into contact with seminal intentionally causes the complainant to come into contact with seminal
fluid, urine or feces for the purpose of arousing sexual desire in the fluid, urine or feces for the purpose of arousing sexual desire in the
defendant or the complainant and the defendant does so: defendant or the complainant and the defendant does so:
1) without the victims consent; or 1) without the victims consent; or
8) the victim was less than 16 years of age and the defendant is four or 8) the victim was less than 16 years of age and the defendant is four or
more years older than the victim and the victim and the defendant more years older than the victim and the victim and the defendant
were not married to each other. were not married to each other.
3126(a)(2)-(6): Indecent Assault as an M-1 3126(a)(2)-(6): Indecent Assault as an M-1

Grading: A misdemeanor of the first degree. Grading: A misdemeanor of the first degree.
defendant or the complainant and the defendant does so: defendant or the complainant and the defendant does so:

4) when the victim was unconscious or the defendant knew that the 4) when the victim was unconscious or the defendant knew that the
victim was unaware that the penetration was occurring; victim was unaware that the penetration was occurring;
5) when the defendant had substantially impaired the victims power to 5) when the defendant had substantially impaired the victims power to
without the knowledge of the victim, drugs, intoxicants, or other means without the knowledge of the victim, drugs, intoxicants, or other means
6) when the complainant suffers from a mental disability which rendered 6) when the complainant suffers from a mental disability which rendered
him or her incapable of consent; him or her incapable of consent;
3126 (a)(7): Indecent Assault of a Child 3126 (a)(7): Indecent Assault of a Child
Grading: a misdemeanor of the first degree. Grading: a misdemeanor of the first degree.
defendant or the complainant and the complainant is less than 13 years defendant or the complainant and the complainant is less than 13 years
of age. of age.
3126 (a)(7): Indecent Assault of a Child as a F-3 3126 (a)(7): Indecent Assault of a Child as a F-3
Grading: a felony of the third degree Grading: a felony of the third degree
Definition: same definition as Indecent Assault of a Child but where any Definition: same definition as Indecent Assault of a Child but where any
of the following apply: of the following apply:
It is a second or subsequent offense; It is a second or subsequent offense;
There has been a course of conduct of indecent assault by the There has been a course of conduct of indecent assault by the
defendant; defendant;
The indecent assault was committed by touching the complainants The indecent assault was committed by touching the complainants
sexual or intimate parts with sexual or intimate parts of the defendant; sexual or intimate parts with sexual or intimate parts of the defendant;
or or
The indecent assault is committed by touching the persons sexual or The indecent assault is committed by touching the persons sexual or
intimate parts with the complainants sexual or intimate parts. intimate parts with the complainants sexual or intimate parts.
Penalty: maximum incarceration sentence and the maximum fine: shall Penalty: maximum incarceration sentence and the maximum fine: shall
8. INDECENT EXPOSURE: 18 Pa.Cons.Stat.Ann. 3127 8. INDECENT EXPOSURE: 18 Pa.Cons.Stat.Ann. 3127
3127 Indecent Exposure as an M-2 3127 Indecent Exposure as an M-2

Definition: where the defendant exposed his or her genitals in any public Definition: where the defendant exposed his or her genitals in any public
place or in any place where there were present other persons under place or in any place where there were present other persons under
circumstances in which the defendant knew or should have known that circumstances in which the defendant knew or should have known that
this conduct was likely to offend, affront, or alarm. this conduct was likely to offend, affront, or alarm.
3127 (b): Indecent Exposure in the presence of persons 3127 (b): Indecent Exposure in the presence of persons
less than 16 years of age less than 16 years of age
Definition: where the defendant knew or should have known that any of Definition: where the defendant knew or should have known that any of
the persons present were less than 16 years of age. the persons present were less than 16 years of age.
9. INVASION OF PRIVACY: 18 Pa.Cons.Stat.Ann. 7507.1 9. INVASION OF PRIVACY: 18 Pa.Cons.Stat.Ann. 7507.1
Grading: a misdemeanor of the third degree for the first violation. If there Grading: a misdemeanor of the third degree for the first violation. If there
is more than one violation, then a misdemeanor of the second degree. is more than one violation, then a misdemeanor of the second degree.
Definition: the defendant, for the purpose of arousing or gratifying the Definition: the defendant, for the purpose of arousing or gratifying the
sexual desire of any person, knowingly does any of the following: sexual desire of any person, knowingly does any of the following:
(1) Views, photographs, videotapes, electronically depicts, films or (1) Views, photographs, videotapes, electronically depicts, films or
otherwise records another person without that persons knowledge and otherwise records another person without that persons knowledge and
consent while that person is in a state of full or partial nudity and is in a consent while that person is in a state of full or partial nudity and is in a
place where that person would have a reasonable expectation of privacy. place where that person would have a reasonable expectation of privacy.
(2) Photographs, videotapes, electronically depicts, films or otherwise (2) Photographs, videotapes, electronically depicts, films or otherwise
records or personally views the intimate parts, whether or not covered by records or personally views the intimate parts, whether or not covered by
clothing, of another person without that persons knowledge and consent clothing, of another person without that persons knowledge and consent
and which intimate parts that person does not intend to be visible by and which intimate parts that person does not intend to be visible by
normal public observation. normal public observation.
(3) Transfers or transmits an image obtained in violation of paragraph (3) Transfers or transmits an image obtained in violation of paragraph
(1) or (2) by live or recorded telephone message, electronic mail or the (1) or (2) by live or recorded telephone message, electronic mail or the
Internet or by any other transfer of the medium on which the image is Internet or by any other transfer of the medium on which the image is
stored stored
Penalty: If a misdemeanor of the third degree, then maximum incarceration Penalty: If a misdemeanor of the third degree, then maximum incarceration
sentence and the maximum fine: shall not exceed 1 year and $2,500. If a sentence and the maximum fine: shall not exceed 1 year and $2,500. If a
misdemeanor of the second degree, then maximum incarceration sentence misdemeanor of the second degree, then maximum incarceration sentence
and the maximum fine: shall not exceed 2 year and $5,000. and the maximum fine: shall not exceed 2 year and $5,000.
Separate Violations: In accordance with 18 Pa.Cons.Stat.Ann. 7507 .1 Separate Violations: In accordance with 18 Pa.Cons.Stat.Ann. 7507 .1
(a.1), a separate violation occurs: (a.1), a separate violation occurs:
(1) for each victim of an offense under subsection (a) under the same or (1) for each victim of an offense under subsection (a) under the same or
similar circumstances pursuant to one scheme or course of conduct similar circumstances pursuant to one scheme or course of conduct
whether at the same or different times; or whether at the same or different times; or
(2) if a person is a victim of an offense under subsection (a) on more than (2) if a person is a victim of an offense under subsection (a) on more than
one occasion during a separate course of conduct either individually one occasion during a separate course of conduct either individually
or otherwise. or otherwise.
10. SEXUAL INTERCOURSE WITH ANIMAL: 18 Pa.Cons. Stat. Ann. 3129 10. SEXUAL INTERCOURSE WITH ANIMAL: 18 Pa.Cons. Stat. Ann. 3129
Grading: a misdemeanor of the second degree. Grading: a misdemeanor of the second degree.
Definition: where the defendant engaged in any form of sexual intercourse Definition: where the defendant engaged in any form of sexual intercourse
with an animal. with an animal.
11. INCEST: 18 Pa.Cons.Stat.Ann. 4302 11. INCEST: 18 Pa.Cons.Stat.Ann. 4302
4302: Incest 4302: Incest

Definition: where the defendant knowingly married, cohabited, or had Definition: where the defendant knowingly married, cohabited, or had
sexual intercourse with an ancestor or descendant, a brother or sister sexual intercourse with an ancestor or descendant, a brother or sister
of the whole or half blood or an uncle, aunt, nephew or niece of the of the whole or half blood or an uncle, aunt, nephew or niece of the
whole blood. The relationships referred to in this section include blood whole blood. The relationships referred to in this section include blood
relationships without regard to legitimacy, and relationship of parent and relationships without regard to legitimacy, and relationship of parent and
child by adoption. child by adoption.
4302(b): Incest of a Minor 4302(b): Incest of a Minor

Definition: where the defendant knowingly married, cohabited, or had Definition: where the defendant knowingly married, cohabited, or had
sexual intercourse with a complainant who is an ancestor or descendant, sexual intercourse with a complainant who is an ancestor or descendant,
a brother or sister of the whole or half blood or an uncle, aunt, nephew or a brother or sister of the whole or half blood or an uncle, aunt, nephew or
niece of the whole blood, and the complainant is either (1) under 13 years niece of the whole blood, and the complainant is either (1) under 13 years
of age or (2) between 13 and 18 years of age and the defendant is four or of age or (2) between 13 and 18 years of age and the defendant is four or
more years older. more years older.
12. CORRUPTION OF MINORS SEXUAL NATURE: 18 Pa.Cons.Stat.Ann. 12. CORRUPTION OF MINORS SEXUAL NATURE: 18 Pa.Cons.Stat.Ann.
6301(a)(1) 6301(a)(1)
Definition: where the defendant, being of the age of 18 and upwards, by Definition: where the defendant, being of the age of 18 and upwards, by
any act corrupted or tended to corrupt the morals of any minor less than any act corrupted or tended to corrupt the morals of any minor less than
18 years, or who aided, abetted, enticed or encouraged any such minor in 18 years, or who aided, abetted, enticed or encouraged any such minor in
the commission of any crime, or who knowingly assisted or encouraged the commission of any crime, or who knowingly assisted or encouraged
such minor in violating his or her parole or any order of court. such minor in violating his or her parole or any order of court.
13. SEXUAL ABUSE OF CHILDREN: 18 Pa.Cons.Stat.Ann. 6312 13. SEXUAL ABUSE OF CHILDREN: 18 Pa.Cons.Stat.Ann. 6312
6312 (b): Sexual abuse of children (photographing, videotaping, 6312 (b): Sexual abuse of children (photographing, videotaping,
depicting on computer or filming sexual acts) depicting on computer or filming sexual acts)
Grading: a felony of the second degree unless: Grading: a felony of the second degree unless:
a felony of the first degree if indecent contact with the child, i.e., any a felony of the first degree if indecent contact with the child, i.e., any
touching of the sexual or other intimate parts for the purpose of touching of the sexual or other intimate parts for the purpose of
arousing or gratifying sexual desire, in any person, is depicted. arousing or gratifying sexual desire, in any person, is depicted.
Definition: where the defendant caused or knowingly permitted a child Definition: where the defendant caused or knowingly permitted a child
under the age of 18 years to engage in a prohibited sexual act, or in the under the age of 18 years to engage in a prohibited sexual act, or in the
simulation of such act, if the defendant knew, had reason to know, or simulation of such act, if the defendant knew, had reason to know, or
intended that such act may be photographed, videotaped, depicted on intended that such act may be photographed, videotaped, depicted on
computer or filmed. computer or filmed.
Penalty: As a felony of the first degree: Maximum incarceration of twenty Penalty: As a felony of the first degree: Maximum incarceration of twenty
years and fine of $50,000. years and fine of $50,000.
As a felony of the second degree: Maximum sentence shall not exceed As a felony of the second degree: Maximum sentence shall not exceed
10 years and fine $25,000. 10 years and fine $25,000.
6312 (c)(1): Sexual abuse of children (dissemination of photographs, 6312 (c)(1): Sexual abuse of children (dissemination of photographs,
videotapes, computer depictions and films) videotapes, computer depictions and films)
Grading: Recidivist Ramifications - a first offense is a felony of the third Grading: Recidivist Ramifications - a first offense is a felony of the third
degree; a second or subsequent offense is a felony of the second degree. degree; a second or subsequent offense is a felony of the second degree.
Definition: includes any knowing sale, distribution, delivery, Definition: includes any knowing sale, distribution, delivery,
dissemination, transfer, display, or exhibition to others, or possession for dissemination, transfer, display, or exhibition to others, or possession for
the purpose of sale, distribution, delivery, dissemination, transfer, display the purpose of sale, distribution, delivery, dissemination, transfer, display
or exhibition to others, any book, magazine, pamphlet, slide, photograph, or exhibition to others, any book, magazine, pamphlet, slide, photograph,
film, videotape, computer depiction or other material depicted a child film, videotape, computer depiction or other material depicted a child
under the age of 18 years engaging in prohibited sexual act or in the under the age of 18 years engaging in prohibited sexual act or in the
simulation of such act. simulation of such act.
Penalty: Maximum incarceration sentence and the maximum fine for the Penalty: Maximum incarceration sentence and the maximum fine for the
felony of the second degree: shall not exceed 10 years and $25,000. felony of the second degree: shall not exceed 10 years and $25,000.
Maximum incarceration sentence and the maximum fine for the Maximum incarceration sentence and the maximum fine for the
felony of the third degree: shall not exceed 7 years and $15,000. felony of the third degree: shall not exceed 7 years and $15,000.
6312 (d)(1): Sexual abuse of children (possession of child pornography) 6312 (d)(1): Sexual abuse of children (possession of child pornography)
Grading: Recidivist Ramifications -a first offense is a felony of the third Grading: Recidivist Ramifications -a first offense is a felony of the third
degree; a second or subsequent offense is a felony of the second degree. degree; a second or subsequent offense is a felony of the second degree.
Definition: Any person who intentionally views or knowingly possesses Definition: Any person who intentionally views or knowingly possesses
or controls any book, magazine, pamphlet, slide, photograph, film, or controls any book, magazine, pamphlet, slide, photograph, film,
videotape, computer depiction or other material depicting a child under videotape, computer depiction or other material depicting a child under
the age of 18 years engaging in a prohibited sexual act or in the simulation the age of 18 years engaging in a prohibited sexual act or in the simulation
of such act commits an offense. of such act commits an offense.
Penalty: Maximum incarceration sentence and the maximum fine for the Penalty: Maximum incarceration sentence and the maximum fine for the
felony of the second degree: shall not exceed 10 years and $25,000. felony of the second degree: shall not exceed 10 years and $25,000.
Maximum incarceration sentence and the maximum fine for the Maximum incarceration sentence and the maximum fine for the
felony of the third degree: shall not exceed 7 years and $15,000. felony of the third degree: shall not exceed 7 years and $15,000.
14. DUTY OF INTERNET SERVICE PROVIDER TO REMOVE CHILD 14. DUTY OF INTERNET SERVICE PROVIDER TO REMOVE CHILD
PORNOGRAPHY: 18 Pa.Cons.Stat.Ann. 7624 PORNOGRAPHY: 18 Pa.Cons.Stat.Ann. 7624
Declared Unconstitutional: In Center for Democracy & Technology Declared Unconstitutional: In Center for Democracy & Technology
v. Papper, 337 F.Supp.2d 606 (E.D.Pa. 2004), the District Court for the v. Papper, 337 F.Supp.2d 606 (E.D.Pa. 2004), the District Court for the
Eastern District of Pennsylvania declared the Internet Child Pornography Eastern District of Pennsylvania declared the Internet Child Pornography
Act, 18 Pa.Cons.Stat.Ann. 7621-7630 to be unconstitutional. Act, 18 Pa.Cons.Stat.Ann. 7621-7630 to be unconstitutional.
Grading: Recidivist Ramifications - a first offense is a misdemeanor of the Grading: Recidivist Ramifications - a first offense is a misdemeanor of the
third degree; a second offense is a misdemeanor of the second degree; a third degree; a second offense is a misdemeanor of the second degree; a
third or subsequent offense is a felony of the third degree. third or subsequent offense is a felony of the third degree.
Definition: Any Internet service provider who violates 18 Pa.Cons.Stat. Definition: Any Internet service provider who violates 18 Pa.Cons.Stat.
Ann. 7622. Section 7622 provides: Ann. 7622. Section 7622 provides:
An Internet service provider shall remove or disable An Internet service provider shall remove or disable
access to child pornography items residing on or access to child pornography items residing on or
accessible through its service in a manner accessible accessible through its service in a manner accessible
to persons located within this Commonwealth within five to persons located within this Commonwealth within five
business days of when the Internet service provider is business days of when the Internet service provider is
notified by the Attorney General pursuant to section 7628 notified by the Attorney General pursuant to section 7628
(relating to notification procedure) that child pornography (relating to notification procedure) that child pornography
items reside on or are accessible through its service. items reside on or are accessible through its service.
Penalty: Penalty:
First Offense: $5,000 fine. First Offense: $5,000 fine.
Second Offense: $20,000 fine. Second Offense: $20,000 fine.
Third or Subsequent Offense: $30,000 fine and imprisonment up to Third or Subsequent Offense: $30,000 fine and imprisonment up to
maximum of seven years. maximum of seven years.
15. UNLAWFUL CONTACT WITH A MINOR: 18 Pa.Cons.Stat. Ann. 6318 15. UNLAWFUL CONTACT WITH A MINOR: 18 Pa.Cons.Stat. Ann. 6318
Grading: the same grade and degree as the most serious underlying Grading: the same grade and degree as the most serious underlying
offense or a felony of the third degree, whichever is greater. offense or a felony of the third degree, whichever is greater.
Definition: A person commits an offense if he is intentionally in contact Definition: A person commits an offense if he is intentionally in contact
with a minor, or a law enforcement officer acting in the performance of with a minor, or a law enforcement officer acting in the performance of
his duties who has assumed the identity of a minor, for the purpose of his duties who has assumed the identity of a minor, for the purpose of
engaging in an activity prohibited under any of the following, and either engaging in an activity prohibited under any of the following, and either
the person initiating the contact or the person being contacted is within the person initiating the contact or the person being contacted is within
this Commonwealth: this Commonwealth:
(1) Any of the sexual offenses enumerated in Chapter 31; (1) Any of the sexual offenses enumerated in Chapter 31;
(2) Open lewdness; (2) Open lewdness;
(3) Prostitution; (3) Prostitution;
(4) Obscene and other sexual materials and performances; (4) Obscene and other sexual materials and performances;
(5) Sexual abuse of children; or (5) Sexual abuse of children; or
(6) Sexual exploitation of children. (6) Sexual exploitation of children.
Penalty: If a felony of the third degree: Maximum incarceration sentence Penalty: If a felony of the third degree: Maximum incarceration sentence
16. SEXUAL EXPLOITATION OF CHILDREN: 18 Pa.Cons.Stat. Ann. 6320 16. SEXUAL EXPLOITATION OF CHILDREN: 18 Pa.Cons.Stat. Ann. 6320
Definition: where the defendant procured for another person a child Definition: where the defendant procured for another person a child
under 18 years of age for the purpose of sexual exploitation. under 18 years of age for the purpose of sexual exploitation.
17. LURING A CHILD INTO A MOTOR VEHICLE OR STRUCTURE: 18 Pa.Cons. 17. LURING A CHILD INTO A MOTOR VEHICLE OR STRUCTURE: 18 Pa.Cons.
Stat.Ann. 2910 Stat.Ann. 2910
Grading: a misdemeanor of the first degree, unless the child is under 13 Grading: a misdemeanor of the first degree, unless the child is under 13
years of age, then a felony of the second degree. years of age, then a felony of the second degree.
Definition: a person who lures or attempts to lure a child into a motor Definition: a person who lures or attempts to lure a child into a motor
vehicle or structure without the consent, express or implied, of the childs vehicle or structure without the consent, express or implied, of the childs
parent or guardian unless the circumstances reasonably indicate that the parent or guardian unless the circumstances reasonably indicate that the
child is in need of assistance. child is in need of assistance.
Penalty: If a misdemeanor of the first degree: maximum incarceration Penalty: If a misdemeanor of the first degree: maximum incarceration
sentence and the maximum fine: shall not exceed 5 years and $10,000. If sentence and the maximum fine: shall not exceed 5 years and $10,000. If
a felony of the second degree: maximum incarceration sentence and the a felony of the second degree: maximum incarceration sentence and the
maximum fine: shall not exceed 10 years and $25,000. maximum fine: shall not exceed 10 years and $25,000.
18. ENDANGERING WELFARE OF CHILDREN: 18 Pa.Cons.Stat. Ann. 4304(a)(1) 18. ENDANGERING WELFARE OF CHILDREN: 18 Pa.Cons.Stat. Ann. 4304(a)(1)
Grading: a misdemeanor of the first degree, unless there is a course of Grading: a misdemeanor of the first degree, unless there is a course of
conduct, then a felony of the third degree. conduct, then a felony of the third degree.
Definition: A parent, guardian or other person supervising the welfare of Definition: A parent, guardian or other person supervising the welfare of
a child under 18 years of age, or a person that employs or supervises such a child under 18 years of age, or a person that employs or supervises such
a person, commits an offense if he knowingly endangers the welfare of the a person, commits an offense if he knowingly endangers the welfare of the
child by violating a duty of care, protection or support. child by violating a duty of care, protection or support.
Penalty: If a misdemeanor of the first degree: maximum incarceration Penalty: If a misdemeanor of the first degree: maximum incarceration
sentence and the maximum fine: shall not exceed 5 years and $10,000. If sentence and the maximum fine: shall not exceed 5 years and $10,000. If
a felony of the third degree: maximum incarceration sentence and the a felony of the third degree: maximum incarceration sentence and the
maximum fine: shall not exceed 7 years and $15,000. maximum fine: shall not exceed 7 years and $15,000.
19. VICTIMS OF SEXUAL OR PHYSICAL ABUSE: 42 Pa.Cons. Stat. Ann. 19. VICTIMS OF SEXUAL OR PHYSICAL ABUSE: 42 Pa.Cons. Stat. Ann.
5988(b) 5988(b)
Grading: a misdemeanor of the third degree. Grading: a misdemeanor of the third degree.
Definition: Any person who violates the confidentiality provided to Definition: Any person who violates the confidentiality provided to
minor victims of sexual or physical abuse created under 42 Pa.Cons.Stat. minor victims of sexual or physical abuse created under 42 Pa.Cons.Stat.
Ann. 5988. Ann. 5988.
Penalty: As a misdemeanor of the third degree: maximum incarceration Penalty: As a misdemeanor of the third degree: maximum incarceration
sentence and the maximum fine: shall not exceed 1 year and $2,500. sentence and the maximum fine: shall not exceed 1 year and $2,500.
20. SEXUAL ASSAULT BY SPORTS OFFICIAL, VOLUNTEER OR EMPLOYEE OF 20. SEXUAL ASSAULT BY SPORTS OFFICIAL, VOLUNTEER OR EMPLOYEE OF
NONPROFIT ASSOCIATION: 18 Pa.Cons. Stat. Ann. 3124.3 NONPROFIT ASSOCIATION: 18 Pa.Cons. Stat. Ann. 3124.3
3124.3(a): Sports Official 3124.3(a): Sports Official

Definition: except for the crimes listed below, when a person who serves Definition: except for the crimes listed below, when a person who serves
as a sports official in a sports program (nonprofit or for-profit association) as a sports official in a sports program (nonprofit or for-profit association)
engages in sexual intercourse, deviate sexual intercourse or indecent engages in sexual intercourse, deviate sexual intercourse or indecent
contact with a child under 18 years of age who is participating in a sports contact with a child under 18 years of age who is participating in a sports
program of either of the associations. Except for Rape ( 3121), statutory program of either of the associations. Except for Rape ( 3121), statutory
sexual assault ( 3122.1), IDSI ( 3123), sexual assault ( 3124.1), or sexual assault ( 3122.1), IDSI ( 3123), sexual assault ( 3124.1), or
aggravated indecent assault ( 3125). aggravated indecent assault ( 3125).
Penalty: As a felony of the third degree: Maximum incarceration sentence Penalty: As a felony of the third degree: Maximum incarceration sentence
3124.3(b): Volunteer or Employee of Nonprofit Association 3124.3(b): Volunteer or Employee of Nonprofit Association
Definition: except for the crimes listed below, when a volunteer or an Definition: except for the crimes listed below, when a volunteer or an
employee of a nonprofit association having direct contact with a child employee of a nonprofit association having direct contact with a child
under 18 years of age who participates in a program or activity of the under 18 years of age who participates in a program or activity of the
nonprofit association engages in sexual intercourse, deviate sexual nonprofit association engages in sexual intercourse, deviate sexual
intercourse or indecent contact with that child. Except for Rape ( 3121), intercourse or indecent contact with that child. Except for Rape ( 3121),
statutory sexual assault ( 3122.1), IDSI ( 3123), sexual assault ( statutory sexual assault ( 3122.1), IDSI ( 3123), sexual assault (
3124.1), or aggravated indecent assault ( 3125). 3124.1), or aggravated indecent assault ( 3125).
Penalty: As a felony of the third degree: Maximum incarceration sentence Penalty: As a felony of the third degree: Maximum incarceration sentence
C. Inchoate Crimes C. Inchoate Crimes
18 Pa.Cons.Stat.Ann. 905(a) - Grading of Criminal Attempt, Solicitation and 18 Pa.Cons.Stat.Ann. 905(a) - Grading of Criminal Attempt, Solicitation and
Conspiracy Conspiracy
Inchoate crimes of sexual violence, unless otherwise provided, shall be crimes of Inchoate crimes of sexual violence, unless otherwise provided, shall be crimes of
the same grade and degree as the most serious offense which is attempted or solicited or the same grade and degree as the most serious offense which is attempted or solicited or
is an object of the conspiracy. is an object of the conspiracy.
D. Mandatory Sentences for Crimes of Sexual Violence D. Mandatory Sentences for Crimes of Sexual Violence
Statutory Maximum Sentence Statutory Maximum Sentence
In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000), the Supreme Court of the United States held that [o]ther than the fact of a prior (2000), the Supreme Court of the United States held that [o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt. 530 U.S. maximum must be submitted to a jury, and proved beyond a reasonable doubt. 530 U.S.
at 490, 120 S.Ct. at 2348. See also Commonwealth v. Aponte, 579 Pa. 246, 262, 855 A.2d at 490, 120 S.Ct. at 2348. See also Commonwealth v. Aponte, 579 Pa. 246, 262, 855 A.2d
800, 811 (2004), cert. denied, 543 U.S. 1063, 125 S.Ct. 886, 160 L.Ed.2d 792 (2005) (in 800, 811 (2004), cert. denied, 543 U.S. 1063, 125 S.Ct. 886, 160 L.Ed.2d 792 (2005) (in
cases where the fact which increases the maximum penalty is not a prior conviction and cases where the fact which increases the maximum penalty is not a prior conviction and
requires a subjective assessment, anything less than proof beyond a reasonable doubt requires a subjective assessment, anything less than proof beyond a reasonable doubt
before a jury violates due process.). before a jury violates due process.).
Mandatory Minimum Sentence Mandatory Minimum Sentence
In Alleyne v. United States, --- U.S. ---, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the In Alleyne v. United States, --- U.S. ---, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), the
United States Supreme Court explicitly held that, under the Sixth Amendment, a factual United States Supreme Court explicitly held that, under the Sixth Amendment, a factual
predicate that leads to an increase in the mandatory minimum sentence for a crime is predicate that leads to an increase in the mandatory minimum sentence for a crime is
an element which must be submitted to and decided by a jury, 133 S.Ct. at 2152, and an element which must be submitted to and decided by a jury, 133 S.Ct. at 2152, and
found beyond a reasonable doubt. Any fact that causes a mandatory minimum sentence found beyond a reasonable doubt. Any fact that causes a mandatory minimum sentence
to be applied must be treated as an element of the offense. 133 S.Ct. 2155. to be applied must be treated as an element of the offense. 133 S.Ct. 2155.
Even a statutory increase by way of a mandatory minimum, which does not Even a statutory increase by way of a mandatory minimum, which does not
increase the statutory maximum sentence, must be proven beyond a reasonable doubt. increase the statutory maximum sentence, must be proven beyond a reasonable doubt.
Commonwealth v. Munday, 78 A.3d 661, 666 (Pa. Super. 2013). Therefore, the factors Commonwealth v. Munday, 78 A.3d 661, 666 (Pa. Super. 2013). Therefore, the factors
which support a mandatory minimum sentence, when invoked at the time of sentencing, which support a mandatory minimum sentence, when invoked at the time of sentencing,
must be proven by the fact finder beyond a reasonable doubt. Id. must be proven by the fact finder beyond a reasonable doubt. Id.
Current Appellate Decisions in Pennsylvania Current Appellate Decisions in Pennsylvania
At the time of the publication of this book, the Superior Court of Pennsylvania, in At the time of the publication of this book, the Superior Court of Pennsylvania, in
a number of decisions, has held that mandatory sentencing statutes which contain the a number of decisions, has held that mandatory sentencing statutes which contain the
proof at sentencing provision, i.e., that the sentencing judge make a determination proof at sentencing provision, i.e., that the sentencing judge make a determination
whether a mandatory minimum sentence applies at the time of sentencing, typically whether a mandatory minimum sentence applies at the time of sentencing, typically
using a preponderance of the evidence standard, are unconstitutional, non-severable and using a preponderance of the evidence standard, are unconstitutional, non-severable and
unenforceable. See Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)(en banc). unenforceable. See Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)(en banc).
In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014), the Superior In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014), the Superior
Court rejected the trial courts attempt to resolve Alleyne mandates by permitting an Court rejected the trial courts attempt to resolve Alleyne mandates by permitting an
amendment to the criminal information to include then necessary additional elements amendment to the criminal information to include then necessary additional elements
and submitting the questions to the jury to determine them upon the standard of beyond and submitting the questions to the jury to determine them upon the standard of beyond
a reasonable doubt. The Valentine court held that the trial court was not permitted to a reasonable doubt. The Valentine court held that the trial court was not permitted to
allow the jury to resolve the mandatory minimum questions absent legislative action in allow the jury to resolve the mandatory minimum questions absent legislative action in
accordance with Commonwealth v. Newman. accordance with Commonwealth v. Newman.
This precedent applies except for mandatory minimum sentencing statutes This precedent applies except for mandatory minimum sentencing statutes
that pertain to prior convictions or are based upon elements of the current offense. that pertain to prior convictions or are based upon elements of the current offense.
See Commonwealth v. Matteson, 96 A.3d 1064, 1066 (Pa.Super. 2014); see also See Commonwealth v. Matteson, 96 A.3d 1064, 1066 (Pa.Super. 2014); see also
Commonwealth v. Watley, 81 A.3d 108, 121-122 (Pa.Super. 2013)(en banc), appeal Commonwealth v. Watley, 81 A.3d 108, 121-122 (Pa.Super. 2013)(en banc), appeal
denied, 95 A.3d 277 (Pa. 2014). denied, 95 A.3d 277 (Pa. 2014).
1. 42 Pa.Cons.Stat.Ann. 971225 1. 42 Pa.Cons.Stat.Ann. 971225

Crime of Violence with a Firearm Crime of Violence with a Firearm
Criteria: Criteria:
the person visibly possessed a firearm or a replica of the person visibly possessed a firearm or a replica of
firearm, whether or not the firearm or replica was loaded firearm, whether or not the firearm or replica was loaded
25 This statute held unconstitutional in Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014). 25 This statute held unconstitutional in Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014).
or functional, that placed the victim in reasonable fear of or functional, that placed the victim in reasonable fear of
death or serious bodily injury, during the commission of a death or serious bodily injury, during the commission of a
crime of violence including those specified below. crime of violence including those specified below.
Offenses included (per 42 Pa.Con.Stat. Ann. 9714(g)): Offenses included (per 42 Pa.Con.Stat. Ann. 9714(g)):
18 Pa.Con.Stat.Ann. 3121 (Rape) 18 Pa.Con.Stat.Ann. 3121 (Rape)
18 Pa.Con.Stat.Ann. 3123 (Involuntary Deviate 18 Pa.Con.Stat.Ann. 3123 (Involuntary Deviate
Sexual Intercourse) Sexual Intercourse)
18 Pa.Con.Stat.Ann. 3125 (Aggravated Indecent 18 Pa.Con.Stat.Ann. 3125 (Aggravated Indecent
Assault) Assault)
18 Pa.Con.Stat.Ann. 4302 (Incest) 18 Pa.Con.Stat.Ann. 4302 (Incest)
18 Pa.Con.Stat.Ann. 3124.1 (Sexual Assault) 18 Pa.Con.Stat.Ann. 3124.1 (Sexual Assault)
Mandatory Sentence: Mandatory Sentence:

minimum sentence of at least five years total confinement. minimum sentence of at least five years total confinement.
Notice and Hearing Requirements: Notice and Hearing Requirements:

Reasonable notice of the Commonwealths intention Reasonable notice of the Commonwealths intention
to proceed under this section must be provided after to proceed under this section must be provided after
conviction and before sentencing. conviction and before sentencing.
The applicability of this section must be determined The applicability of this section must be determined
at sentencing. The sentencing court must consider at sentencing. The sentencing court must consider
any evidence presented at trial and must afford the any evidence presented at trial and must afford the
Commonwealth and the defendant an opportunity Commonwealth and the defendant an opportunity
to present any necessary additional evidence at to present any necessary additional evidence at
sentencing and must determine, by a preponderance of sentencing and must determine, by a preponderance of
the evidence, if this section is applicable. the evidence, if this section is applicable.

Crime of Violence in/near Public Transportation Crime of Violence in/near Public Transportation
Criteria: Criteria:
The person commits a crime of sexual violence specified The person commits a crime of sexual violence specified
below if the crime occurs in or near public transportation. below if the crime occurs in or near public transportation.
Offenses included: Offenses included:

Assault) Assault)
26 This statute held unconstitutional in Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014). 26 This statute held unconstitutional in Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014).

Minimum sentence of at least five years total confinement. Minimum sentence of at least five years total confinement.


Crime of Violence Second or Subsequent Conviction Crime of Violence Second or Subsequent Conviction
Criteria: Criteria:
Conviction for a second or subsequent crime of violence, Conviction for a second or subsequent crime of violence,
including as specified below, if at the time of the commission including as specified below, if at the time of the commission
of the current offense the person had previously been of the current offense the person had previously been
convicted of a crime of violence as specified below. convicted of a crime of violence as specified below.
Offenses included: Offenses included:

Assault) Assault)
Mandatory Minimum Sentence: Mandatory Minimum Sentence:

(i) Second Strike Provision - for a single prior conviction, (i) Second Strike Provision - for a single prior conviction,
a minimum sentence of at least ten years total a minimum sentence of at least ten years total
confinement; confinement;
(ii) Three Strikes Law - for multiple prior convictions, (ii) Three Strikes Law - for multiple prior convictions,
a minimum sentence of at least 25 years total a minimum sentence of at least 25 years total
confinement. However, the sentencing court may, if confinement. However, the sentencing court may, if
it determines that 25 years of total confinement is it determines that 25 years of total confinement is
insufficient to protect the public safety, sentence the insufficient to protect the public safety, sentence the
offender to life imprisonment without parole. offender to life imprisonment without parole.
Mandatory Maximum Sentence: Mandatory Maximum Sentence:
a defendant sentenced to a mandatory minimum sentence a defendant sentenced to a mandatory minimum sentence
under this section shall be sentenced to a maximum under this section shall be sentenced to a maximum
sentence equal to twice the mandatory minimum sentence, sentence equal to twice the mandatory minimum sentence,
notwithstanding 18 Pa.Cons.Stat.Ann. 1103 (relating to notwithstanding 18 Pa.Cons.Stat.Ann. 1103 (relating to
sentence of imprisonment for felony) or any other provision sentence of imprisonment for felony) or any other provision
of this title or other statute to the contrary. of this title or other statute to the contrary.

Upon a second conviction for a crime of violence, the Upon a second conviction for a crime of violence, the
court shall give the defendant oral and written notice court shall give the defendant oral and written notice
of the penalties under this section for a third conviction of the penalties under this section for a third conviction
for a crime of violence; for a crime of violence;
The applicability of this section must be determined at The applicability of this section must be determined at
sentencing. The sentencing court must have a complete sentencing. The sentencing court must have a complete
record of the previous convictions of the defendant, record of the previous convictions of the defendant,
copies of which shall be furnished to the offender. If the copies of which shall be furnished to the offender. If the
offender or the attorney for the Commonwealth contests offender or the attorney for the Commonwealth contests
the accuracy of the record, the court must schedule a the accuracy of the record, the court must schedule a
hearing and direct the offender and the attorney for hearing and direct the offender and the attorney for
the Commonwealth to submit evidence regarding the the Commonwealth to submit evidence regarding the
previous convictions of the offender. The court shall previous convictions of the offender. The court shall
then determine, by a preponderance of the evidence, the then determine, by a preponderance of the evidence, the
previous convictions of the offender and, if this section previous convictions of the offender and, if this section
is applicable, shall impose sentence in accordance with is applicable, shall impose sentence in accordance with
this section. this section.
Should a previous conviction be vacated and an acquittal Should a previous conviction be vacated and an acquittal
or final discharge entered subsequent to imposition of or final discharge entered subsequent to imposition of
sentence under this section, the defendant has the right sentence under this section, the defendant has the right
to petition the sentencing court for reconsideration of to petition the sentencing court for reconsideration of
sentence if this section would not have been applicable sentence if this section would not have been applicable
except for the conviction which was vacated. except for the conviction which was vacated.

Victim over 60 years old Victim over 60 years old
Criteria: Criteria:
Conviction for Rape (18 Pa.Cons.Stat.Ann. 3121) or Conviction for Rape (18 Pa.Cons.Stat.Ann. 3121) or
Involuntary Deviate Sexual Intercourse (18 Pa.Cons.Stat. Involuntary Deviate Sexual Intercourse (18 Pa.Cons.Stat.
Ann. 3123) where the defendant is under 60 years of age, Ann. 3123) where the defendant is under 60 years of age,
and the victim is over the age of 60 and not a police officer. and the victim is over the age of 60 and not a police officer.

mandatory term of imprisonment of at least five years. mandatory term of imprisonment of at least five years.
5. 42 Pa.Cons.Stat.Ann. 9718 (a)(1)27 5. 42 Pa.Cons.Stat.Ann. 9718 (a)(1)27

Victim under 16 years old Victim under 16 years old
Criteria: Criteria:
Conviction for the following offenses when the victim is Conviction for the following offenses when the victim is
under 16 years of age: under 16 years of age:
Rape (18 Pa.Cons.Stat.Ann. 3121(a) (1),(2),(3),(4)&(5)); Rape (18 Pa.Cons.Stat.Ann. 3121(a) (1),(2),(3),(4)&(5));
or or
Involuntary Deviate Sexual Intercourse (18 Pa.Cons. Involuntary Deviate Sexual Intercourse (18 Pa.Cons.
Stat.Ann. 3123) when the victim is under 16 years of Stat.Ann. 3123) when the victim is under 16 years of
age. age.
Aggravated Indecent Assault ((18 Pa.Cons.Stat.Ann. Aggravated Indecent Assault ((18 Pa.Cons.Stat.Ann.
3125(a)(1)-(6) 3125(a)(1)-(6)

For Rape and IDSI - mandatory term of imprisonment For Rape and IDSI - mandatory term of imprisonment
of not less than ten years. of not less than ten years.
For Aggravated Indecent Assault mandatory term of For Aggravated Indecent Assault mandatory term of
not less than five years. not less than five years.

at sentencing. The court must consider the evidence at sentencing. The court must consider the evidence
presented at trial and the Commonwealth and the presented at trial and the Commonwealth and the
defense my present any necessary additional evidence. defense my present any necessary additional evidence.
The court shall then determine, by a preponderance of The court shall then determine, by a preponderance of
6. 42 Pa.Cons.Stat.Ann 9718 (a)(2)28 6. 42 Pa.Cons.Stat.Ann 9718 (a)(2)28

Victim under 13 years old Victim under 13 years old
Criteria: Criteria:
Conviction for Rape (18 Pa.Cons.Stat.Ann. 3121(c)&(d); Conviction for Rape (18 Pa.Cons.Stat.Ann. 3121(c)&(d);
Aggravated Indecent Assault (18 Pa.Cons.Stat.Ann. Aggravated Indecent Assault (18 Pa.Cons.Stat.Ann.
3125(a)(7) & (b). 3125(a)(7) & (b).
27 This statute held unconstitutional, insofar as it permits a judge to automatically increase a defendants sentence based on a preponderance 27 This statute held unconstitutional, insofar as it permits a judge to automatically increase a defendants sentence based on a preponderance
of the evidence standard, in Commonwealth v. Watley, 81 A.3d 108, 121-122 (Pa.Super. 2013)(en banc), appeal denied, 95 A.3d 277 (Pa. of the evidence standard, in Commonwealth v. Watley, 81 A.3d 108, 121-122 (Pa.Super. 2013)(en banc), appeal denied, 95 A.3d 277 (Pa.
2014). 2014).
28 This statute held unconstitutional, insofar as it permits a judge to automatically increase a defendants sentence based on a preponderance 28 This statute held unconstitutional, insofar as it permits a judge to automatically increase a defendants sentence based on a preponderance
of the evidence standard, in Commonwealth v. Watley, 81 A.3d 108, 121-122 (Pa.Super. 2013)(en banc), appeal denied, 95 A.3d 277 (Pa. of the evidence standard, in Commonwealth v. Watley, 81 A.3d 108, 121-122 (Pa.Super. 2013)(en banc), appeal denied, 95 A.3d 277 (Pa.
2014). 2014).

For Rape and Aggravated Indecent Assault of a Child For Rape and Aggravated Indecent Assault of a Child
mandatory term of imprisonment not less than ten years. mandatory term of imprisonment not less than ten years.
For Aggravated Indecent Assault under subsection (a)(7) - For Aggravated Indecent Assault under subsection (a)(7) -
mandatory term of imprisonment not less than five years. mandatory term of imprisonment not less than five years.

at sentencing. The court must consider the evidence at sentencing. The court must consider the evidence
presented at trial and the Commonwealth and the presented at trial and the Commonwealth and the
defense my present any necessary additional evidence. defense my present any necessary additional evidence.
The court shall then determine, by a preponderance of The court shall then determine, by a preponderance of
7. 42 Pa.Cons.Stat.Ann 9718.2 7. 42 Pa.Cons.Stat.Ann 9718.2

Sentences for Sexual Offenders Sentences for Sexual Offenders
Criteria: Criteria:
Conviction for any offense listed in 42 Pa.Cons.Stat.Ann. Conviction for any offense listed in 42 Pa.Cons.Stat.Ann.
9799.14 and previously convicted for offense listed in 9799.14 and previously convicted for offense listed in
9799.14 (or equivalent crime under other jurisdiction). 9799.14 (or equivalent crime under other jurisdiction).

(i) Second Strike Provision - for a single prior conviction, (i) Second Strike Provision - for a single prior conviction,
a minimum sentence of at least 25 years total a minimum sentence of at least 25 years total
confinement; confinement;
(ii) Three Strikes Provision - for multiple prior convictions, (ii) Three Strikes Provision - for multiple prior convictions,
a sentence of life imprisonment. a sentence of life imprisonment.
Constitutionality Constitutionality
In Commonwealth v. Baker, --- Pa. ---, 78 A.3d 1044 (2013), In Commonwealth v. Baker, --- Pa. ---, 78 A.3d 1044 (2013),
the Pennsylvania Supreme Court found the mandatory the Pennsylvania Supreme Court found the mandatory
minimum sentence of 25 years in the second strike provision minimum sentence of 25 years in the second strike provision
did not violate the constitutional prohibition against cruel did not violate the constitutional prohibition against cruel
and unusual punishment. and unusual punishment.

Upon a second conviction for a crime of violence, the Upon a second conviction for a crime of violence, the
court shall give the defendant oral and written notice court shall give the defendant oral and written notice
of the penalties under this section for a third conviction of the penalties under this section for a third conviction
for a crime of violence; for a crime of violence;
The applicability of this section must be determined at The applicability of this section must be determined at
sentencing. The sentencing court must have a complete sentencing. The sentencing court must have a complete
record of the previous convictions of the defendant, record of the previous convictions of the defendant,
copies of which shall be furnished to the offender. If the copies of which shall be furnished to the offender. If the
offender or the attorney for the Commonwealth contests offender or the attorney for the Commonwealth contests
the accuracy of the record, the court must schedule a the accuracy of the record, the court must schedule a
hearing and direct the offender and the attorney for hearing and direct the offender and the attorney for
the Commonwealth to submit evidence regarding the the Commonwealth to submit evidence regarding the
previous convictions of the offender. The court shall previous convictions of the offender. The court shall
then determine, by a preponderance of the evidence, the then determine, by a preponderance of the evidence, the
previous convictions of the offender and, if this section previous convictions of the offender and, if this section
is applicable, shall impose sentence in accordance with is applicable, shall impose sentence in accordance with
this section. this section.
Should a previous conviction be vacated and an acquittal Should a previous conviction be vacated and an acquittal
or final discharge entered subsequent to imposition of or final discharge entered subsequent to imposition of
sentence under this section, the defendant has the right sentence under this section, the defendant has the right
to petition the sentencing court for reconsideration of to petition the sentencing court for reconsideration of
sentence if this section would not have been applicable sentence if this section would not have been applicable
except for the conviction which was vacated. except for the conviction which was vacated.
Mandatory Maximum Sentence: Mandatory Maximum Sentence:

A defendant sentenced to a mandatory minimum sentence A defendant sentenced to a mandatory minimum sentence
under this section shall be sentenced to a maximum under this section shall be sentenced to a maximum
sentence equal to twice the mandatory minimum sentence, sentence equal to twice the mandatory minimum sentence,
notwithstanding 18 Pa.Cons.Stat.Ann. 1103 (relating to notwithstanding 18 Pa.Cons.Stat.Ann. 1103 (relating to
sentence of imprisonment for felony) or any other provision sentence of imprisonment for felony) or any other provision
of this title or other statute to the contrary. of this title or other statute to the contrary.
8. 42 Pa.Cons.Stat.Ann 9720.2 8. 42 Pa.Cons.Stat.Ann 9720.2

Sentencing for Trafficking of Persons Sentencing for Trafficking of Persons
Criteria: Criteria:
Conviction for a violation of 18 Pa.Cons.Stat.Ann. 3011, Conviction for a violation of 18 Pa.Cons.Stat.Ann. 3011,
relating to trafficking of persons, while violating Rape (18 relating to trafficking of persons, while violating Rape (18
Pa.Cons.Stat.Ann. 3121) or IDSI (18 Pa.Cons.Stat.Ann. Pa.Cons.Stat.Ann. 3121) or IDSI (18 Pa.Cons.Stat.Ann.
3123). 3123).

shall be sentenced up to a maximum term of life shall be sentenced up to a maximum term of life
imprisonment. imprisonment.
9. 42 Pa.Cons.Stat.Ann 971929 9. 42 Pa.Cons.Stat.Ann 971929

29 This statute held unconstitutional, insofar as it permits a judge to automatically increase a defendants sentence based on a preponderance of 29 This statute held unconstitutional, insofar as it permits a judge to automatically increase a defendants sentence based on a preponderance of
the evidence standard, in Commonwealth v. Watley, 81 A.3d 108, 121-122 (Pa.Super. 2013)(en banc), appeal denied, 95 A.3d 277 (Pa. 2014). the evidence standard, in Commonwealth v. Watley, 81 A.3d 108, 121-122 (Pa.Super. 2013)(en banc), appeal denied, 95 A.3d 277 (Pa. 2014).
Crime of violence committed while impersonating a police officer Crime of violence committed while impersonating a police officer
Criteria: Criteria:
Conviction for the following offenses, or an attempt thereof, Conviction for the following offenses, or an attempt thereof,
and the defendant impersonated a police officer while and the defendant impersonated a police officer while
committing the offense: committing the offense:
Rape (18 Pa.Cons.Stat.Ann. 3121); or Rape (18 Pa.Cons.Stat.Ann. 3121); or
Involuntary Deviate Sexual Intercourse (18 Pa.Cons. Involuntary Deviate Sexual Intercourse (18 Pa.Cons.
Stat.Ann. 3123). Stat.Ann. 3123).

mandatory term of imprisonment of at least 3 years. mandatory term of imprisonment of at least 3 years.

E. Sexual Offender Treatment E. Sexual Offender Treatment
Pursuant to 42 Pa.Cons.Stat.Ann. 9718.1, Sexual Offender Treatment, any Pursuant to 42 Pa.Cons.Stat.Ann. 9718.1, Sexual Offender Treatment, any
person, including a sexually violent predator under 42 Pa.Cons.Stat.Ann. 9799.12, person, including a sexually violent predator under 42 Pa.Cons.Stat.Ann. 9799.12,
if incarcerated in a state institution for any of the following crimes, must attend and if incarcerated in a state institution for any of the following crimes, must attend and
participate in a Department of Corrections program of counseling or therapy designed participate in a Department of Corrections program of counseling or therapy designed
for incarcerated sex offenders: for incarcerated sex offenders:
(1) Any of the offenses enumerated in Chapter 31 (relating to (1) Any of the offenses enumerated in Chapter 31 (relating to
sexual offenses) if the offense involved a minor under 18 years sexual offenses) if the offense involved a minor under 18 years
of age. of age.
(2) Section 4304 (relating to endangering welfare of children) if (2) Section 4304 (relating to endangering welfare of children) if
the offense involved sexual contact with the victim. the offense involved sexual contact with the victim.
(3) Section 6301 (relating to corruption of minors) if the offense (3) Section 6301 (relating to corruption of minors) if the offense
involved sexual contact with the victim. involved sexual contact with the victim.
(4) Open lewdness, as defined in section 5901 (relating to open (4) Open lewdness, as defined in section 5901 (relating to open
lewdness), if the offense involved a minor under 18 years of age. lewdness), if the offense involved a minor under 18 years of age.
(5) Prostitution, as defined in section 5902 (relating to (5) Prostitution, as defined in section 5902 (relating to
prostitution and related offenses), if the offense involved a minor prostitution and related offenses), if the offense involved a minor
under 18 years of age. under 18 years of age.
(6) Obscene and other sexual materials and performances, as (6) Obscene and other sexual materials and performances, as
defined in section 5903 (relating to obscene and other sexual defined in section 5903 (relating to obscene and other sexual
materials and performances), if the offense involved a minor materials and performances), if the offense involved a minor
under 18 years of age. under 18 years of age.
(7) Sexual abuse of children, as defined in section 6312 (relating (7) Sexual abuse of children, as defined in section 6312 (relating
to sexual abuse of children). to sexual abuse of children).
(8) Section 6318 (relating to unlawful contact with minor). (8) Section 6318 (relating to unlawful contact with minor).
(9) Section 6320 (relating to sexual exploitation of children). (9) Section 6320 (relating to sexual exploitation of children).
(10) Section 4302 (relating to incest) if the offense involved a (10) Section 4302 (relating to incest) if the offense involved a
minor under 18 years of age. minor under 18 years of age.
(11) An attempt or solicitation to commit any of the offenses (11) An attempt or solicitation to commit any of the offenses
listed in this subsection. listed in this subsection.
See 42 Pa.Cons.Stat.Ann. 9718.1. See 42 Pa.Cons.Stat.Ann. 9718.1.
F. Sentencing Guidelines F. Sentencing Guidelines
1. Analysis of the Guidelines 1. Analysis of the Guidelines
The sentencing guidelines are written with the typical case in mind, so The sentencing guidelines are written with the typical case in mind, so
that a sentence suggested within the standard range will generally serve as an that a sentence suggested within the standard range will generally serve as an
appropriate penalty for the offense. The guidelines were promulgated primarily appropriate penalty for the offense. The guidelines were promulgated primarily
to provide standardization in sentencing throughout the state. The unrestricted to provide standardization in sentencing throughout the state. The unrestricted
discretion the sentencing court once enjoyed was changed dramatically by discretion the sentencing court once enjoyed was changed dramatically by
implementation of the guidelines in the late 1970s. As the Pennsylvania Supreme implementation of the guidelines in the late 1970s. As the Pennsylvania Supreme
Court summarized in Commonwealth v. Mouzon, 571 Pa. 419, 424 n.2, 812 A.2d Court summarized in Commonwealth v. Mouzon, 571 Pa. 419, 424 n.2, 812 A.2d
617, 620 n.2 (2002) (plurality): 617, 620 n.2 (2002) (plurality):
In 1978, the General Assembly empowered the Pennsylvania In 1978, the General Assembly empowered the Pennsylvania
Commission on Sentencing to formulate Sentencing Commission on Sentencing to formulate Sentencing
Guidelines, which the General Assembly subsequently Guidelines, which the General Assembly subsequently
adopted. This Court has recognized that the Sentencing adopted. This Court has recognized that the Sentencing
Guidelines were promulgated in order to structure the trial Guidelines were promulgated in order to structure the trial
courts exercise of its sentencing power and to address courts exercise of its sentencing power and to address
disparate sentencing. Legislative history also indicates that disparate sentencing. Legislative history also indicates that
the Guidelines were enacted to make criminal sentences the Guidelines were enacted to make criminal sentences
more rational and consistent, to eliminate unwarranted more rational and consistent, to eliminate unwarranted
disparity in sentencing, and to restrict the unfettered disparity in sentencing, and to restrict the unfettered
discretion we give to sentencing judges. discretion we give to sentencing judges.
The sentencing court must consider the guidelines in determining The sentencing court must consider the guidelines in determining
the appropriate sentence for a defendant convicted of, or pleading guilty or the appropriate sentence for a defendant convicted of, or pleading guilty or
nolo contendere to, felonies and misdemeanors. 204 Pa. Code 303.1(a). The nolo contendere to, felonies and misdemeanors. 204 Pa. Code 303.1(a). The
sentencing guidelines do not apply to sentences imposed as a result of the sentencing guidelines do not apply to sentences imposed as a result of the
following: (1) accelerated rehabilitative disposition; (2) disposition in lieu of trial; following: (1) accelerated rehabilitative disposition; (2) disposition in lieu of trial;
(3) direct or indirect contempt of court; (4) violations of protection from abuse (3) direct or indirect contempt of court; (4) violations of protection from abuse
orders; and (5) revocation of probation, intermediate punishment or parole. 204 orders; and (5) revocation of probation, intermediate punishment or parole. 204
Pa. Code 303.1(b). Pa. Code 303.1(b).
The procedure for determining the guideline sentence from the matrix The procedure for determining the guideline sentence from the matrix
requires the determination of the Offense Gravity Score and the defendants requires the determination of the Offense Gravity Score and the defendants
Prior Record Score. In every case in which a sentence is imposed for a felony Prior Record Score. In every case in which a sentence is imposed for a felony
or misdemeanor, the sentencing court must state on the record, and disclose in or misdemeanor, the sentencing court must state on the record, and disclose in
open court at the time of sentencing and on the Guideline Sentence Form, the open court at the time of sentencing and on the Guideline Sentence Form, the
reason(s) for the sentence imposed. See 42 Pa.Cons.Stat.Ann. 9721(b). reason(s) for the sentence imposed. See 42 Pa.Cons.Stat.Ann. 9721(b).
If the sentencing judge determines that the standard range sentence will If the sentencing judge determines that the standard range sentence will
not provide a just result due to the existence of certain aggravating or mitigating not provide a just result due to the existence of certain aggravating or mitigating
circumstances, the sentencing court may impose, within the guidelines, an circumstances, the sentencing court may impose, within the guidelines, an
aggravated range or mitigated range sentence that either increases or decreases aggravated range or mitigated range sentence that either increases or decreases
the standard range penalty by a specified number of months, which varies based the standard range penalty by a specified number of months, which varies based
on the Offense Gravity Score. Pursuant to 204 Pa. Code 303.13(c), when the on the Offense Gravity Score. Pursuant to 204 Pa. Code 303.13(c), when the
sentencing court imposes an aggravated or mitigated sentence, the reasons for sentencing court imposes an aggravated or mitigated sentence, the reasons for
departing from the standard range sentence shall be stated both on the record departing from the standard range sentence shall be stated both on the record
and on the Guideline Sentence Form. and on the Guideline Sentence Form.
When sentencing outside of the guideline ranges, the sentencing court When sentencing outside of the guideline ranges, the sentencing court
must ensure that the record reflects with clarity that the court considered the must ensure that the record reflects with clarity that the court considered the
sentencing guidelines in a rational and systematic way and made a dispassionate sentencing guidelines in a rational and systematic way and made a dispassionate
decision to depart from them. Commonwealth v. Rodda, 723 A.2d 212, 216 (Pa. decision to depart from them. Commonwealth v. Rodda, 723 A.2d 212, 216 (Pa.
Super. 1999). Super. 1999).
In Commonwealth v. Austin, 66 A.3d 798 (Pa. Super. 2013), appeal In Commonwealth v. Austin, 66 A.3d 798 (Pa. Super. 2013), appeal
denied, --- Pa. ---, 77 A.3d 1258 (2013), the Superior Court initially decided that denied, --- Pa. ---, 77 A.3d 1258 (2013), the Superior Court initially decided that
a sentence of 72 to 192 years in prison following the defendants convictions a sentence of 72 to 192 years in prison following the defendants convictions
of 96 counts of sexual abuse of children (possession of child pornography) was of 96 counts of sexual abuse of children (possession of child pornography) was
an abuse of discretion; however, upon remand, the trial court re-sentenced the an abuse of discretion; however, upon remand, the trial court re-sentenced the
defendant to 35 years to 70 years. defendant to 35 years to 70 years.
Although the Superior Court, upon the second appeal, found that an Although the Superior Court, upon the second appeal, found that an
aggregate sentence of 35 years to 70 years in prison did not present a substantial aggregate sentence of 35 years to 70 years in prison did not present a substantial
question, the Court stated that even had the appellant raised a substantial question, the Court stated that even had the appellant raised a substantial
question, it would not find that the trial court abused its discretion in imposing question, it would not find that the trial court abused its discretion in imposing
the sentence. On its face, such a sentence did not constitute a guaranteed life the sentence. On its face, such a sentence did not constitute a guaranteed life
sentence for a presently twenty-eight year old appellant. 66 A.3d at 807. sentence for a presently twenty-eight year old appellant. 66 A.3d at 807.
The Superior Court noted that the trial court had available to it expert The Superior Court noted that the trial court had available to it expert
reports which indicated, inter alia, that the appellant was a high risk offender, reports which indicated, inter alia, that the appellant was a high risk offender,
had psychological issues, functioned on the level of an adolescent, behaved in a had psychological issues, functioned on the level of an adolescent, behaved in a
resistant pattern of sexual deviation that would not be easy to rehabilitate, and resistant pattern of sexual deviation that would not be easy to rehabilitate, and
showed a lack of remorse. The Superior Court also stressed that the trial court had showed a lack of remorse. The Superior Court also stressed that the trial court had
determined the appellants history of promiscuity and reckless behavior support determined the appellants history of promiscuity and reckless behavior support
the notion he is likely to re-offend and that the facts revealed the appellants the notion he is likely to re-offend and that the facts revealed the appellants
behavior was characterized by a resistant pattern of sexual deviation which behavior was characterized by a resistant pattern of sexual deviation which
would not be easy to rehabilitate. 66 A.3d at 804. would not be easy to rehabilitate. 66 A.3d at 804.
Although the Sentencing Commission, rather than the General Assembly Although the Sentencing Commission, rather than the General Assembly
itself, directly adopts the Sentencing Guidelines and therefore the Guidelines are itself, directly adopts the Sentencing Guidelines and therefore the Guidelines are
not statutes per se, the Guidelines nevertheless retain a legislative character, as not statutes per se, the Guidelines nevertheless retain a legislative character, as
the General Assembly may reject them in their entirety prior to their taking effect, the General Assembly may reject them in their entirety prior to their taking effect,
subject, of course, to gubernatorial review.30 Moreover, the General Assembly subject, of course, to gubernatorial review.30 Moreover, the General Assembly
itself has designated the Commission as a legislative agency. 42 Pa.Cons.Stat. itself has designated the Commission as a legislative agency. 42 Pa.Cons.Stat.
Ann. 2151.2 (The commission shall be established as an agency of the General Ann. 2151.2 (The commission shall be established as an agency of the General
Assembly .). Therefore, the appellate courts apply the standard rules of Assembly .). Therefore, the appellate courts apply the standard rules of
statutory construction to the guidelines. See Commonwealth v. Hackenberger, statutory construction to the guidelines. See Commonwealth v. Hackenberger,
575 Pa. 197, 201 n.9, 836 A.2d 2, 4 n.9 (2003). 575 Pa. 197, 201 n.9, 836 A.2d 2, 4 n.9 (2003).
2. Guideline Scores and Points 2. Guideline Scores and Points

A full listing of all crimes, including crimes of sexual violence, is compiled A full listing of all crimes, including crimes of sexual violence, is compiled
in 204 Pa.Code 303.15. This listing includes the grading of the offense, the in 204 Pa.Code 303.15. This listing includes the grading of the offense, the
offense gravity score, and the prior record score point. offense gravity score, and the prior record score point.
The basic sentencing matrix, which will be applicable in most cases, is The basic sentencing matrix, which will be applicable in most cases, is
supplied in 204 Pa.Code 303.16a. supplied in 204 Pa.Code 303.16a.
The sentencing guidelines for cases in which the deadly weapon The sentencing guidelines for cases in which the deadly weapon
enhancement is applicable are listed in 204 Pa.Code 303.17a & 303.17b, enhancement is applicable are listed in 204 Pa.Code 303.17a & 303.17b,
depending on whether the weapon was used. depending on whether the weapon was used.
G. Sentencing Alternatives to Traditional Incarceration G. Sentencing Alternatives to Traditional Incarceration
1. Intermediate Punishment 1. Intermediate Punishment
Pennsylvania first enacted provisions establishing intermediate Pennsylvania first enacted provisions establishing intermediate
30 Subject to gubernatorial review pursuant to section 9 of Article III of the Constitution of Pennsylvania, the General Assembly may 30 Subject to gubernatorial review pursuant to section 9 of Article III of the Constitution of Pennsylvania, the General Assembly may
by concurrent resolution reject in their entirety any guidelines adopted by the commission within 90 days of their publication in the by concurrent resolution reject in their entirety any guidelines adopted by the commission within 90 days of their publication in the
Pennsylvania Bulletin . 42 Pa.ConS.Stat.ann. 2155(b). Pennsylvania Bulletin . 42 Pa.ConS.Stat.ann. 2155(b).
punishment as a sentencing alternative in 1990. The current act, the Pennsylvania punishment as a sentencing alternative in 1990. The current act, the Pennsylvania
County Intermediate Punishment Act, 42 Pa.Cons.Stat.Ann. 9801-9813, County Intermediate Punishment Act, 42 Pa.Cons.Stat.Ann. 9801-9813,
provides that County intermediate punishment program options include the provides that County intermediate punishment program options include the
following: following:
(a) Description.--County intermediate punishment (a) Description.--County intermediate punishment

program options shall include the following: program options shall include the following:
(1) Restrictive intermediate punishments providing for the (1) Restrictive intermediate punishments providing for the
strict supervision of the offender including programs that: strict supervision of the offender including programs that:
(i) house the offender full or part time; (i) house the offender full or part time;
(ii) significantly restrict the offenders movement and (ii) significantly restrict the offenders movement and
monitor the offenders compliance with the program; or monitor the offenders compliance with the program; or
(iii) involve a combination of programs that meet the (iii) involve a combination of programs that meet the
standards set forth under subparagraphs (i) and (ii). standards set forth under subparagraphs (i) and (ii).
(2) When utilized in combination with restrictive (2) When utilized in combination with restrictive
intermediate punishments, restorative sanctions providing intermediate punishments, restorative sanctions providing
for nonconfinement sentencing options that: for nonconfinement sentencing options that:
(i) Are the least restrictive in terms of the constraint of the (i) Are the least restrictive in terms of the constraint of the
offenders liberties. offenders liberties.
(ii) Do not involve the housing of the offender, either full (ii) Do not involve the housing of the offender, either full
or part time. or part time.
(iii) Focus on restoring the victim to pre-offense status. (iii) Focus on restoring the victim to pre-offense status.
The Legislatures intent was: to give judges another sentencing option The Legislatures intent was: to give judges another sentencing option
which would lie between probation and incarceration with respect to sentencing which would lie between probation and incarceration with respect to sentencing
severity; to provide a more appropriate form of punishment/treatment for severity; to provide a more appropriate form of punishment/treatment for
certain types of non-violent offenders; to make the offender more accountable certain types of non-violent offenders; to make the offender more accountable
to the community; and to help reduce the county jail overcrowding problem to the community; and to help reduce the county jail overcrowding problem
while maintaining public safety. Commonwealth v. Phillipp, 709 A.2d 920, while maintaining public safety. Commonwealth v. Phillipp, 709 A.2d 920,
921 (Pa. Super. 1998) (quoting Sentencing in Pennsylvania 1990: 1990-1991 921 (Pa. Super. 1998) (quoting Sentencing in Pennsylvania 1990: 1990-1991
Annual Report of The Pennsylvania Commission on Sentencing 8). See also, Annual Report of The Pennsylvania Commission on Sentencing 8). See also,
Commonwealth v. Williams, 868 A.2d 529 (Pa. Super. 2005), appeal denied, 586 Commonwealth v. Williams, 868 A.2d 529 (Pa. Super. 2005), appeal denied, 586
Pa. 726, 890 A.2d 1059 (2005). Pa. 726, 890 A.2d 1059 (2005).
The CIPA specifically excludes individuals who are charged or have prior The CIPA specifically excludes individuals who are charged or have prior
records of certain crimes of sexual violence. The current law for determining an records of certain crimes of sexual violence. The current law for determining an
offenders eligibility for an intermediate punishment sentence is set forth in 42 offenders eligibility for an intermediate punishment sentence is set forth in 42
Pa.Cons.Stat.Ann. 9802; an eligible offender is defined as follows: Pa.Cons.Stat.Ann. 9802; an eligible offender is defined as follows:
Eligible offender. Subject to section 9721(a.1) Eligible offender. Subject to section 9721(a.1)
(relating to sentencing generally), a person convicted (relating to sentencing generally), a person convicted
of an offense who would otherwise be sentenced to a of an offense who would otherwise be sentenced to a
county correctional facility, who does not demonstrate a county correctional facility, who does not demonstrate a
present or past pattern of violent behavior and who would present or past pattern of violent behavior and who would
otherwise be sentenced to partial confinement pursuant otherwise be sentenced to partial confinement pursuant
to section 9724 (relating to partial confinement) or total to section 9724 (relating to partial confinement) or total
confinement pursuant to section 9725 (relating to total confinement pursuant to section 9725 (relating to total
confinement). The term does not include an offender who confinement). The term does not include an offender who
has been convicted or adjudicated delinquent of a crime has been convicted or adjudicated delinquent of a crime
requiring registration under Subchapter H of Chapter 97 requiring registration under Subchapter H of Chapter 97
(relating to registration of sexual offenders) or an offender (relating to registration of sexual offenders) or an offender
with a current conviction or a prior conviction within the with a current conviction or a prior conviction within the
past ten years for any of the following offenses: past ten years for any of the following offenses:
18 Pa.C.S. 2502 (relating to murder). 18 Pa.C.S. 2502 (relating to murder).
18 Pa.C.S. 2503 (relating to voluntary manslaughter). 18 Pa.C.S. 2503 (relating to voluntary manslaughter).
18 Pa.C.S. 2702 (relating to aggravated assault). 18 Pa.C.S. 2702 (relating to aggravated assault).
18 Pa.C.S. 2703 (relating to assault by prisoner). 18 Pa.C.S. 2703 (relating to assault by prisoner).
18 Pa.C.S. 2704 (relating to assault by life prisoner). 18 Pa.C.S. 2704 (relating to assault by life prisoner).
18 Pa.C.S. 2901(a) (relating to kidnapping). 18 Pa.C.S. 2901(a) (relating to kidnapping).
18 Pa.C.S. 3122.1(a)(1) (relating to statutory sexual 18 Pa.C.S. 3122.1(a)(1) (relating to statutory sexual
assault). assault).
18 Pa.C.S. 3301 (relating to arson and related 18 Pa.C.S. 3301 (relating to arson and related
offenses). offenses).
18 Pa.C.S. 3502 (relating to burglary) when graded 18 Pa.C.S. 3502 (relating to burglary) when graded
as a felony of the first degree. as a felony of the first degree.
18 Pa.C.S. 3701 (relating to robbery). 18 Pa.C.S. 3701 (relating to robbery).
18 Pa.C.S. 3923 (relating to theft by extortion). 18 Pa.C.S. 3923 (relating to theft by extortion).
18 Pa.C.S. 4302(a) (relating to incest). 18 Pa.C.S. 4302(a) (relating to incest).
18 Pa.C.S. 5121 (relating to escape). 18 Pa.C.S. 5121 (relating to escape).
The grant or denial of a request for intermediate punishment is largely The grant or denial of a request for intermediate punishment is largely
within the sound discretion of the trial court. See Commonwealth v. Jurczak, 86 within the sound discretion of the trial court. See Commonwealth v. Jurczak, 86
2. Order of Probation 2. Order of Probation
Probation may be an appropriate sentence based upon the following Probation may be an appropriate sentence based upon the following
grounds: grounds:
The following grounds, while not controlling the discretion The following grounds, while not controlling the discretion
of the court, shall be accorded weight in favor of an order of the court, shall be accorded weight in favor of an order
of probation: of probation:
(1) The criminal conduct of the defendant neither (1) The criminal conduct of the defendant neither
caused nor threatened serious harm. caused nor threatened serious harm.
(2) The defendant did not contemplate that his conduct (2) The defendant did not contemplate that his conduct
would cause or threaten serious harm. would cause or threaten serious harm.
(3) The defendant acted under a strong provocation. (3) The defendant acted under a strong provocation.
(4) There were substantial grounds tending to excuse (4) There were substantial grounds tending to excuse
or justify the criminal conduct of the defendant, though or justify the criminal conduct of the defendant, though
failing to establish a defense. failing to establish a defense.
(5) The victim of the criminal conduct of the defendant (5) The victim of the criminal conduct of the defendant
induced or facilitated its commission. induced or facilitated its commission.
(6) The defendant has compensated or will compensate (6) The defendant has compensated or will compensate
the victim of his criminal conduct for the damage or the victim of his criminal conduct for the damage or
injury that he sustained. injury that he sustained.
(7) The defendant has no history of prior delinquency (7) The defendant has no history of prior delinquency
or criminal activity or has led a law-abiding life for a or criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the substantial period of time before the commission of the
present crime. present crime.
(8) The criminal conduct of the defendant was the (8) The criminal conduct of the defendant was the
result of circumstances unlikely to recur. result of circumstances unlikely to recur.
(9) The character and attitudes of the defendant (9) The character and attitudes of the defendant
indicate that he is unlikely to commit another crime. indicate that he is unlikely to commit another crime.
(10) The defendant is particularly likely to respond (10) The defendant is particularly likely to respond
affirmatively to probationary treatment. affirmatively to probationary treatment.
(11) The confinement of the defendant would entail (11) The confinement of the defendant would entail
excessive hardship to him or his dependents. excessive hardship to him or his dependents.
(12) Such other grounds as indicate the desirability of (12) Such other grounds as indicate the desirability of
probation. probation.
When necessary, the terms of a probationary sentence can be tailored to When necessary, the terms of a probationary sentence can be tailored to
address issues in a cases involving sexual abuse. A probationer may be required address issues in a cases involving sexual abuse. A probationer may be required
to: to:
remain at home during the hours designated by the court; remain at home during the hours designated by the court;
remain within the courts jurisdiction or in a psychiatric remain within the courts jurisdiction or in a psychiatric
institution indefinitely; undergo medical treatment; perform institution indefinitely; undergo medical treatment; perform
community service; make restitution or reparations; refrain community service; make restitution or reparations; refrain
from frequenting certain locations and/or associating with from frequenting certain locations and/or associating with
particular individuals; permit the probation officer to visit particular individuals; permit the probation officer to visit
his home frequently; devote himself to a specific occupation; his home frequently; devote himself to a specific occupation;
and/or satisfy a variety of other conditions that the court and/or satisfy a variety of other conditions that the court
deems necessary. deems necessary.
Commonwealth v. Williams, 574 Pa. 487, 509 n. 15, 832 A.2d 962, 975 n. 15 Commonwealth v. Williams, 574 Pa. 487, 509 n. 15, 832 A.2d 962, 975 n. 15
(2003). The conditions of probations listed in the statute, 42 Pa.Cons.Stat.Ann. (2003). The conditions of probations listed in the statute, 42 Pa.Cons.Stat.Ann.
9754 include: 9754 include:
9754. Order of probation 9754. Order of probation
(a) General rule.--In imposing an order of probation the (a) General rule.--In imposing an order of probation the
court shall specify at the time of sentencing the length of court shall specify at the time of sentencing the length of
any term during which the defendant is to be supervised, any term during which the defendant is to be supervised,
which term may not exceed the maximum term for which which term may not exceed the maximum term for which
the defendant could be confined, and the authority that the defendant could be confined, and the authority that
shall conduct the supervision. shall conduct the supervision.
... ...
(c) Specific conditions.--The court may as a condition (c) Specific conditions.--The court may as a condition
of its order require the defendant: of its order require the defendant:
(1) To meet his family responsibilities. (1) To meet his family responsibilities.
(2) To devote himself to a specific occupation or (2) To devote himself to a specific occupation or
employment. employment.
(2.1) To participate in a public or nonprofit community (2.1) To participate in a public or nonprofit community
service program unless the defendant was convicted service program unless the defendant was convicted
of murder, rape, aggravated assault, arson, theft by of murder, rape, aggravated assault, arson, theft by
extortion, terroristic threats, robbery or kidnapping. extortion, terroristic threats, robbery or kidnapping.
(3) To undergo available medical or psychiatric (3) To undergo available medical or psychiatric
treatment and to enter and remain in a specified treatment and to enter and remain in a specified
institution, when required for that purpose. institution, when required for that purpose.
(4) To pursue a prescribed secular course of study or (4) To pursue a prescribed secular course of study or
vocational training. vocational training.
(5) To attend or reside in a facility established for the (5) To attend or reside in a facility established for the
instruction, recreation, or residence of persons on instruction, recreation, or residence of persons on
probation. probation.
(6) To refrain from frequenting unlawful or disreputable (6) To refrain from frequenting unlawful or disreputable
places or consorting with disreputable persons. places or consorting with disreputable persons.
(7) To have in his possession no firearm or other (7) To have in his possession no firearm or other
dangerous weapon unless granted written permission. dangerous weapon unless granted written permission.
(8) To make restitution of the fruits of his crime or to (8) To make restitution of the fruits of his crime or to
make reparations, in an amount he can afford to pay, make reparations, in an amount he can afford to pay,
for the loss or damage caused thereby. for the loss or damage caused thereby.
(9) To remain within the jurisdiction of the court and to (9) To remain within the jurisdiction of the court and to
notify the court or the probation officer of any change notify the court or the probation officer of any change
in his address or his employment. in his address or his employment.
(10) To report as directed to the court or the probation (10) To report as directed to the court or the probation
officer and to permit the probation officer to visit his officer and to permit the probation officer to visit his
home. home.
(11) To pay such fine as has been imposed. (11) To pay such fine as has been imposed.
(12) To participate in drug or alcohol treatment (12) To participate in drug or alcohol treatment
programs. programs.
(13) To satisfy any other conditions reasonably related (13) To satisfy any other conditions reasonably related
to the rehabilitation of the defendant and not unduly to the rehabilitation of the defendant and not unduly
restrictive of his liberty or incompatible with his freedom restrictive of his liberty or incompatible with his freedom
of conscience. of conscience.
(14) To remain within the premises of his residence (14) To remain within the premises of his residence
during the hours designated by the court. during the hours designated by the court.
9.9 THE SENTENCING HEARING 9.9 THE SENTENCING HEARING
A. The Defendants Right to Counsel A. The Defendants Right to Counsel
Proceedings relating to the imposition of a criminal sentence constitute a critical Proceedings relating to the imposition of a criminal sentence constitute a critical
stage in the criminal proceedings, therefore, absent waiver, the defendant must be stage in the criminal proceedings, therefore, absent waiver, the defendant must be
represented by counsel. Commonwealth v. DAmato, 579 Pa. 490, 516-517, 856 A.2d represented by counsel. Commonwealth v. DAmato, 579 Pa. 490, 516-517, 856 A.2d
806, 821-522 (2004). The right to counsel is enshrined in both the United States and 806, 821-522 (2004). The right to counsel is enshrined in both the United States and
Pennsylvania Constitutions. See U.S. Const. Amend. VI; Pa. Const. Art. 1, 9. Moreover, Pennsylvania Constitutions. See U.S. Const. Amend. VI; Pa. Const. Art. 1, 9. Moreover,
[t]here is no disputing that there exists a constitutional right to counsel at sentencing. [t]here is no disputing that there exists a constitutional right to counsel at sentencing.
Commonwealth v. Smith, 69 A.3d 259, 265 (Pa. Super. 2013), appeal denied, --- Pa. ---, Commonwealth v. Smith, 69 A.3d 259, 265 (Pa. Super. 2013), appeal denied, --- Pa. ---,
83 A.3d 168 (2013). 83 A.3d 168 (2013).
Pursuant to the Sixth Amendment of the United States Constitution and Pursuant to the Sixth Amendment of the United States Constitution and
Article I, 9 of the Pennsylvania Constitution, a person accused of a crime and Article I, 9 of the Pennsylvania Constitution, a person accused of a crime and
the subject of a criminal prosecution has a constitutional right to counsel at the subject of a criminal prosecution has a constitutional right to counsel at
every stage of a criminal proceeding where substantive rights of the accused every stage of a criminal proceeding where substantive rights of the accused
may be affected. Commonwealth v. Johnson, 574 Pa. 5, 13, 828 A.2d 1009, may be affected. Commonwealth v. Johnson, 574 Pa. 5, 13, 828 A.2d 1009,
1014 (2003). Pa.R.Crim.P. 704(c)(1) adopts the right to counsel at sentencing 1014 (2003). Pa.R.Crim.P. 704(c)(1) adopts the right to counsel at sentencing
and provides that the sentencing judge must afford counsel for both parties and provides that the sentencing judge must afford counsel for both parties
the opportunity to present information and argument relative to sentencing. the opportunity to present information and argument relative to sentencing.
1. Pre-sentence Investigation Report 1. Pre-sentence Investigation Report
In Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973), the In Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973), the
Pennsylvania Supreme Court held that when the trial court orders a presentence Pennsylvania Supreme Court held that when the trial court orders a presentence
investigation report, defense counsel has a right to examine its contents before investigation report, defense counsel has a right to examine its contents before
sentencing and, if he contests any portion, to offer evidence in rebuttal. Defense sentencing and, if he contests any portion, to offer evidence in rebuttal. Defense
counsel must make a request for the report. Commonwealth v. Craft, 450 A.2d counsel must make a request for the report. Commonwealth v. Craft, 450 A.2d
1021, 1023 (Pa. Super. 1982). 1021, 1023 (Pa. Super. 1982).
In Phelps, the Supreme Court also adopted the American Bar Associations In Phelps, the Supreme Court also adopted the American Bar Associations
Standards for Criminal Justice Sentencing regarding disclosure. The current Standards for Criminal Justice Sentencing regarding disclosure. The current
standard is as follows: standard is as follows:
Standard 18-5.7 Disclosure of report to parties Standard 18-5.7 Disclosure of report to parties
(a) The rules of procedure should entitle the parties to (a) The rules of procedure should entitle the parties to
copies of the written presentence report and any similar copies of the written presentence report and any similar
reports. reports.
(b) The rules should provide that the information made (b) The rules should provide that the information made
available to the parties must be disclosed sufficiently available to the parties must be disclosed sufficiently
prior to the sentencing hearing to afford a reasonable prior to the sentencing hearing to afford a reasonable
opportunity for challenge and verification of material opportunity for challenge and verification of material
information in the report. information in the report.
(c) All communications to a court by the agency (c) All communications to a court by the agency
responsible for preparing the presentence report should responsible for preparing the presentence report should
be in writing and subject to the right of the parties to be in writing and subject to the right of the parties to
know the content of the report. The rules should prohibit know the content of the report. The rules should prohibit
confidential sentencing recommendations. confidential sentencing recommendations.
ABA Standards for Criminal Justice: Sentencing, 3d Ed., Standard 18-5.7. ABA Standards for Criminal Justice: Sentencing, 3d Ed., Standard 18-5.7.
B. The Defendants Right of Allocution B. The Defendants Right of Allocution
The right to allocution is the opportunity for the defendant to make a statement The right to allocution is the opportunity for the defendant to make a statement
to the sentencing judge or jury in which the defendant can ask for mercy, explain his to the sentencing judge or jury in which the defendant can ask for mercy, explain his
or her conduct, apologize for the crime, or say anything else in an effort to lessen the or her conduct, apologize for the crime, or say anything else in an effort to lessen the
impending sentence. Blacks Law Dictionary 75 (7th ed. 1999). impending sentence. Blacks Law Dictionary 75 (7th ed. 1999).
In Pennsylvania, it is well established that a defendant is entitled to the right In Pennsylvania, it is well established that a defendant is entitled to the right
of allocution. Commonwealth v. Green, 862 A.2d 613, 620 (Pa.Super. 2004)(en banc), of allocution. Commonwealth v. Green, 862 A.2d 613, 620 (Pa.Super. 2004)(en banc),
appeal denied, 584 Pa. 692, 882 A.2d 477 (2005). The sentencing court must advise the appeal denied, 584 Pa. 692, 882 A.2d 477 (2005). The sentencing court must advise the
defendant of his right to speak prior to being sentenced. Commonwealth v. Thomas, defendant of his right to speak prior to being sentenced. Commonwealth v. Thomas,
520 Pa. 206, 209, 553 A.2d 918, 919 (1989). See also, Commonwealth v. Jacobs, 900 520 Pa. 206, 209, 553 A.2d 918, 919 (1989). See also, Commonwealth v. Jacobs, 900
A.2d 368, 375-376 (Pa. Super. 2006), appeal denied, 591 Pa. 681, 917 A.2d 313 (2006). A.2d 368, 375-376 (Pa. Super. 2006), appeal denied, 591 Pa. 681, 917 A.2d 313 (2006).
The right to allocution is included in the Pennsylvania Rules of Criminal Procedure: The right to allocution is included in the Pennsylvania Rules of Criminal Procedure:
Pa.R.CRim.P. 704 Pa.R.CRim.P. 704

(C) Sentencing Proceeding. (C) Sentencing Proceeding.
(1) At the time of sentencing, the judge shall afford the (1) At the time of sentencing, the judge shall afford the
defendant the opportunity to make a statement in his or defendant the opportunity to make a statement in his or
her behalf and shall afford counsel for both parties the her behalf and shall afford counsel for both parties the
opportunity to present information and argument relative to opportunity to present information and argument relative to
sentencing. sentencing.
Pa.R.Crim.P. 704(C)(1). Consistent with established case law, the appellate courts have Pa.R.Crim.P. 704(C)(1). Consistent with established case law, the appellate courts have
adhered to the principle that a defendant who is not permitted to address the trial adhered to the principle that a defendant who is not permitted to address the trial
judge prior to sentencing is automatically entitled to a new sentencing hearing. See, e.g., judge prior to sentencing is automatically entitled to a new sentencing hearing. See, e.g.,
Commonwealth v. Newton, 875 A.2d 1088, 1090 (Pa.Super. 2005), appeal denied, 586 Commonwealth v. Newton, 875 A.2d 1088, 1090 (Pa.Super. 2005), appeal denied, 586
Pa. 724, 890 A.2d 1058 (2005). Furthermore, an alleged denial of the right of allocution Pa. 724, 890 A.2d 1058 (2005). Furthermore, an alleged denial of the right of allocution
relates to the legality of the sentence, and is therefore not waived on collateral review if relates to the legality of the sentence, and is therefore not waived on collateral review if
not raised on direct appeal. Id. not raised on direct appeal. Id.
C. The Victims and Prosecutors Right to Speak at Sentencing C. The Victims and Prosecutors Right to Speak at Sentencing
In accordance with Section 201 of the Crime Victims Act,31 the victim of a crime In accordance with Section 201 of the Crime Victims Act,31 the victim of a crime
has the right to be present at sentencing and make comment before the pronouncement has the right to be present at sentencing and make comment before the pronouncement
of sentence: of sentence:
11.201 11.201
Victims of crime have the following rights: Victims of crime have the following rights:

(5) To have opportunity to offer prior comment on (5) To have opportunity to offer prior comment on
the sentencing of a defendant or the disposition of a the sentencing of a defendant or the disposition of a
delinquent child, to include the submission of a written delinquent child, to include the submission of a written
and oral victim impact statement detailing the physical, and oral victim impact statement detailing the physical,
psychological and economic effects of the crime on the psychological and economic effects of the crime on the
victim and the victims family. The written statement shall victim and the victims family. The written statement shall
be included in any predisposition or presentence report be included in any predisposition or presentence report
submitted to the court. Victim-impact statements shall be submitted to the court. Victim-impact statements shall be
considered by a court when determining the disposition considered by a court when determining the disposition
of a juvenile or sentence of an adult. of a juvenile or sentence of an adult.
18 Pa.Stat. 11.201(5). 18 Pa.Stat. 11.201(5).
Additionally, Pa.R.Crim.P. 704(c)(1) provides that the sentencing judge must Additionally, Pa.R.Crim.P. 704(c)(1) provides that the sentencing judge must
afford counsel for both parties the opportunity to present information and argument afford counsel for both parties the opportunity to present information and argument
relative to sentencing. Although sentencing proceedings must comport with due process, relative to sentencing. Although sentencing proceedings must comport with due process,
the convicted defendant need not be accorded the entire panoply of criminal trial the convicted defendant need not be accorded the entire panoply of criminal trial
procedural rights. Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa.Super. 1999), procedural rights. Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa.Super. 1999),
appeal denied, 561 Pa. 672, 749 A.2d 468 (2000), quoting Commonwealth v. Wright, appeal denied, 561 Pa. 672, 749 A.2d 468 (2000), quoting Commonwealth v. Wright,
508 Pa. 25, 36, 494 A.2d 354, 360 (1985), affirmed, 477 U.S. 79 (1986). 508 Pa. 25, 36, 494 A.2d 354, 360 (1985), affirmed, 477 U.S. 79 (1986).
Commonwealth v. Gaddis, 639 A.2d 462, 470 (Pa.Super. 1994), appeal denied, Commonwealth v. Gaddis, 639 A.2d 462, 470 (Pa.Super. 1994), appeal denied,
538 Pa. 665, 649 A.2d 668 (1994): In case involving charges of sexual, physical 538 Pa. 665, 649 A.2d 668 (1994): In case involving charges of sexual, physical
and emotion abuse of children, the testimony from the trial, arguments of and emotion abuse of children, the testimony from the trial, arguments of
counsel, and the pre-sentence report, which include the defendants prior counsel, and the pre-sentence report, which include the defendants prior
record, constituted the relevant and material information required to impose record, constituted the relevant and material information required to impose
a reasonable sentence. a reasonable sentence.
31 The Crime Victims Act, 18 Pa.Stat. 11.101 - 5102. 31 The Crime Victims Act, 18 Pa.Stat. 11.101 - 5102.
9.10 PROBATION VIOLATION HEARING 9.10 PROBATION VIOLATION HEARING
The Commonwealth establishes a probation violation meriting revocation when The Commonwealth establishes a probation violation meriting revocation when
it shows, by a preponderance of the evidence, that the probationers conduct violated it shows, by a preponderance of the evidence, that the probationers conduct violated
the terms and conditions of his probation, and that probation has proven an ineffective the terms and conditions of his probation, and that probation has proven an ineffective
rehabilitation tool incapable of deterring probationer from future antisocial conduct. rehabilitation tool incapable of deterring probationer from future antisocial conduct.
Commonwealth v. Ahmad, 961 A.2d 884 (Pa. Super. 2008). [I]t is only when it becomes Commonwealth v. Ahmad, 961 A.2d 884 (Pa. Super. 2008). [I]t is only when it becomes
apparent that the probationary order is not serving this desired end [of rehabilitation] apparent that the probationary order is not serving this desired end [of rehabilitation]
the courts discretion to impose a more appropriate sanction should not be fettered. the courts discretion to impose a more appropriate sanction should not be fettered.
Commonwealth v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007) (citation omitted). Commonwealth v. Carver, 923 A.2d 495, 498 (Pa. Super. 2007) (citation omitted).
Chapter Nine Addendum 1 Chapter Nine Addendum 1

Suggested Colloquy following Guilty Plea or Guilty Verdict Suggested Colloquy following Guilty Plea or Guilty Verdict
Mr./Ms. _________________________, you have been found guilty/pled guilty to the following Mr./Ms. _________________________, you have been found guilty/pled guilty to the following
crime(s): crime(s):
________________________________________________ ________________________________________________
________________________________________________ ________________________________________________
________________________________________________ ________________________________________________
The maximum penalty for each of the offenses is: The maximum penalty for each of the offenses is:
________________________________________________ ________________________________________________
________________________________________________ ________________________________________________
________________________________________________ ________________________________________________
In accordance with Pennsylvania Rule of Criminal Procedure 704, sentencing is scheduled In accordance with Pennsylvania Rule of Criminal Procedure 704, sentencing is scheduled
for ______________________________________. for ______________________________________.
In preparation for sentencing, I am ordering the adult probation department to conduct In preparation for sentencing, I am ordering the adult probation department to conduct
a pre-sentence investigation and prepare a pre-sentence investigation report which a pre-sentence investigation and prepare a pre-sentence investigation report which
will be available for you and your attorney, as well as the Commonwealths attorney, to will be available for you and your attorney, as well as the Commonwealths attorney, to
review prior to sentencing. review prior to sentencing.
[The reasons I am dispensing with a pre-sentence report are: ____________________________ [The reasons I am dispensing with a pre-sentence report are: ____________________________
___________________________________________________________________________________________________ ___________________________________________________________________________________________________
___________________________________________________________________________________________________] ___________________________________________________________________________________________________]
I am also ordering: I am also ordering:

o A psychological examination and report; o A psychological examination and report;
o A psychiatric examination and report; o A psychiatric examination and report;
o A drug and alcohol assessment; o A drug and alcohol assessment;
o An assessment under 9795.4 of Megans Law in light of your o An assessment under 9795.4 of Megans Law in light of your
conviction of the crime of ________________________________. conviction of the crime of ________________________________.
o Other evaluations or assessments:_________________________. o Other evaluations or assessments:_________________________.
If you have any extraordinary circumstances, I will hear an oral motion in arrest of If you have any extraordinary circumstances, I will hear an oral motion in arrest of
judgment, for a judgment of acquittal, or for a new trial prior to your sentencing. The judgment, for a judgment of acquittal, or for a new trial prior to your sentencing. The
motion, and my decision, must be made before you are sentenced. motion, and my decision, must be made before you are sentenced.
Do you have any questions? Do you have any questions?

Trial Judge must continue, modify or revoke bail. Trial Judge must continue, modify or revoke bail.
Addendum Notes: Addendum Notes:

(1) Sentencing must ordinarily be scheduled within 90 days of conviction or the (1) Sentencing must ordinarily be scheduled within 90 days of conviction or the
entry of a guilty/nolo contendere plea. Pa.R.Crim.P. 704(A)(1). entry of a guilty/nolo contendere plea. Pa.R.Crim.P. 704(A)(1).
(2) In accordance with Pa.R.Crim.P. 702(A)(2), the trial judge must state on the (2) In accordance with Pa.R.Crim.P. 702(A)(2), the trial judge must state on the
record the reasons for dispensing with a pre-sentence report if any of the record the reasons for dispensing with a pre-sentence report if any of the
following apply: following apply:
Incarceration for one year or more is possible; Incarceration for one year or more is possible;
The defendant is less than 21 years old; The defendant is less than 21 years old;
The defendant is a first time offender and has not been sentenced before The defendant is a first time offender and has not been sentenced before
as an adult. as an adult.
(3) For purposes of a psychiatric or psychological examination, the defendant may (3) For purposes of a psychiatric or psychological examination, the defendant may
be remanded to a clinic, hospital, institution or state correctional diagnostic be remanded to a clinic, hospital, institution or state correctional diagnostic
and classification center for up to 60 days. Pa.R.Crim.P. 702(B). and classification center for up to 60 days. Pa.R.Crim.P. 702(B).
Chapter Nine Addendum 2 Chapter Nine Addendum 2

Pennsylvanias Maximum Sentencing Provisions Pennsylvanias Maximum Sentencing Provisions
MAXIMUM MAXIMUM
LONGEST ALLOWABLE LONGEST ALLOWABLE LONGEST ALLOWABLE LONGEST ALLOWABLE
GRADE ALLOWABLE FINE GRADE ALLOWABLE FINE
MAXIMUM SENTENCE (1) MINIMUM SENTENCE (2) MAXIMUM SENTENCE (1) MINIMUM SENTENCE (2)
(3) (3)
Felony 1 20 years 10 years $25,000 Felony 1 20 years 10 years $25,000
Felony 2 10 years 5 years $25,000 Felony 2 10 years 5 years $25,000
Felony 3 7 years 3.5 years $15,000 Felony 3 7 years 3.5 years $15,000
Misdemeanor Misdemeanor
5 years 2.5 years $10,000 5 years 2.5 years $10,000
1 1
2 years 1 year $5,000 2 years 1 year $5,000
2 2
1 year 6 months $2,500 1 year 6 months $2,500
3 3
$300 if none higher $300 if none higher

Summary 90 days 45 days Summary 90 days 45 days
under law under law
1. 18 Pa.Cons.Stat.Ann. 110 3 1105. 1. 18 Pa.Cons.Stat.Ann. 110 3 1105.
2. The minimum may not exceed one-half the maximum sentence that is imposed: 42 2. The minimum may not exceed one-half the maximum sentence that is imposed: 42
Pa.Cons.Stat.Ann. 9755(b) and 9756(b)(1). Pa.Cons.Stat.Ann. 9755(b) and 9756(b)(1).
3. 18 Pa.Cons.Stat.Ann. 1101. The statute provides, also, that the fine may be any higher 3. 18 Pa.Cons.Stat.Ann. 1101. The statute provides, also, that the fine may be any higher
amount equal to double the pecuniary gain derived from the offense by the offender, or amount equal to double the pecuniary gain derived from the offense by the offender, or
any higher or lower amount specifically authorized by statute. any higher or lower amount specifically authorized by statute.
Chapter 10 Chapter 10
APPELLATE REVIEW APPELLATE REVIEW

AND AND
POST-CONVICTION RELIEF POST-CONVICTION RELIEF
Appellate Review and Post-Conviction Relief Appellate Review and Post-Conviction Relief
Chapter Ten Table of Contents Chapter Ten Table of Contents

10.2 APPEALABLE ORDERS ........................................................................................ 3 10.2 APPEALABLE ORDERS ........................................................................................ 3
A. Final Orders ................ ..................................................................................................................... 3 A. Final Orders ................ ..................................................................................................................... 3
1. Definition ..................................................................................................... 4 1. Definition ..................................................................................................... 4
(a) Examples of Final Orders ....................................................................... 4 (a) Examples of Final Orders ....................................................................... 4
(b) Examples of Non-Appealable Orders ................................................ 4 (b) Examples of Non-Appealable Orders ................................................ 4
2. Appeals by the Commonwealth in Criminal Cases ....................................... 5 2. Appeals by the Commonwealth in Criminal Cases ....................................... 5
(a) Habeas Corpus ............................................................................................ 5 (a) Habeas Corpus ............................................................................................ 5
(b) Severance ...................................................................................................... 5 (b) Severance ...................................................................................................... 5
B. Interlocutory Orders Appealable as of Right ..................................................................... 5 B. Interlocutory Orders Appealable as of Right ..................................................................... 5
1. Change of Venue or Venire in Criminal Cases ................................................. 5 1. Change of Venue or Venire in Criminal Cases ................................................. 5
2. New Trials in Criminal Cases ................................................................................. 6 2. New Trials in Criminal Cases ................................................................................. 6
3. Recusal.. ........................................................................................................ 6 3. Recusal.. ........................................................................................................ 6
4. Appeals With Commonwealth Certification.................................................... 6 4. Appeals With Commonwealth Certification.................................................... 6
(a) Suppression Orders .................................................................................. 7 (a) Suppression Orders .................................................................................. 7
(b) Quashal Orders ........................................................................................... 7 (b) Quashal Orders ........................................................................................... 7
(c) Secure Presence of Necessary Witness ............................................ 7 (c) Secure Presence of Necessary Witness ............................................ 7
C. Interlocutory Appeal by Permission ...................................................................................... 7 C. Interlocutory Appeal by Permission ...................................................................................... 7
1. Petition for Review..................................................................................................... 9 1. Petition for Review..................................................................................................... 9
D. Collateral Orders ....................................................................................................................10 D. Collateral Orders ....................................................................................................................10
1. Standard of Review ..................................................................................................10 1. Standard of Review ..................................................................................................10
2. Collateral Orders in Criminal Cases ..................................................................11 2. Collateral Orders in Criminal Cases ..................................................................11
10.3 OPINION IN SUPPORT OF ORDER .................................................................11 10.3 OPINION IN SUPPORT OF ORDER .................................................................11
A. Pennsylvania Rule of Appellate Procedure 1925 ...........................................................11 A. Pennsylvania Rule of Appellate Procedure 1925 ...........................................................11
1. Directions to File Statement Under Pa.R.A.P 1925(b) ..............................14 1. Directions to File Statement Under Pa.R.A.P 1925(b) ..............................14
2. Waiver of Issues.........................................................................................................15 2. Waiver of Issues.........................................................................................................15
(a) Exceptions to Strict Waiver Rule ...................................................15 (a) Exceptions to Strict Waiver Rule ...................................................15
(b) Remand in Lieu of Waiver ....................................................................16 (b) Remand in Lieu of Waiver ....................................................................16
B. Opinion or Designation of Reasons: Pa.R.A.P. 1925(a) ................................................17 B. Opinion or Designation of Reasons: Pa.R.A.P. 1925(a) ................................................17
10.4 TRANSMISSION OF THE RECORD ..................................................................19 10.4 TRANSMISSION OF THE RECORD ..................................................................19
A. Duty of the Trial Court: Pa.R.A.P. 1931(b) .........................................................................19 A. Duty of the Trial Court: Pa.R.A.P. 1931(b) .........................................................................19
10.5 STANDARDS AND SCOPE OF REVIEW ON APPEAL ...................................20 10.5 STANDARDS AND SCOPE OF REVIEW ON APPEAL ...................................20
A. Appeals from Suppression Decisions......................................................................20 A. Appeals from Suppression Decisions......................................................................20

1. Denial of a Suppression Motion..........................................................................20 1. Denial of a Suppression Motion..........................................................................20
2. Grant of Suppression Motion ...............................................................................21 2. Grant of Suppression Motion ...............................................................................21
B. Appeals from Judgment of Sentence .......................................................................21 B. Appeals from Judgment of Sentence .......................................................................21
1. Challenge to the Sufficiency of the Evidence ................................................21 1. Challenge to the Sufficiency of the Evidence ................................................21
2. Challenge to the Weight of the Evidence ........................................................23 2. Challenge to the Weight of the Evidence ........................................................23
3. Challenge to the Jury Charge/Instructions ....................................................25 3. Challenge to the Jury Charge/Instructions ....................................................25
4. Challenge to the Discretionary Aspects of a Sentence ..............................26 4. Challenge to the Discretionary Aspects of a Sentence ..............................26
5. Challenge to the Legality of Sentence ..............................................................28 5. Challenge to the Legality of Sentence ..............................................................28
10.6 POST CONVICTION RELIEF ACT .....................................................................29 10.6 POST CONVICTION RELIEF ACT .....................................................................29
A. Petitions under the PCRA .........................................................................................................29 A. Petitions under the PCRA .........................................................................................................29
B. Jurisdictional Time Limitations .............................................................................................31 B. Jurisdictional Time Limitations .............................................................................................31
C. Appeals from PCRA Orders ......................................................................................................31 C. Appeals from PCRA Orders ......................................................................................................31
Chapter Ten Table of Contents Chapter Ten Table of Contents

This chapter discusses various aspects of the criminal appeals process pertinent This chapter discusses various aspects of the criminal appeals process pertinent
to sexual violence crimes. Section 10.2 defines and discusses particular trial court orders to sexual violence crimes. Section 10.2 defines and discusses particular trial court orders
from which there may be an appeal, including: from which there may be an appeal, including:
Final orders; Final orders;

Interlocutory orders appealable as of right; Interlocutory orders appealable as of right;
Interlocutory orders appealable by permission; and Interlocutory orders appealable by permission; and
Collateral orders. Collateral orders.
The following two sections describe the necessary procedural steps both the The following two sections describe the necessary procedural steps both the
appellant and the trial court must take once a notice of appeal has been filed. Section appellant and the trial court must take once a notice of appeal has been filed. Section
10.3 discusses the option that the trial court has to file an opinion pursuant to Pa.R.A.P. 10.3 discusses the option that the trial court has to file an opinion pursuant to Pa.R.A.P.
1925 following an appeal. The rules which specify the requirements for transmission of 1925 following an appeal. The rules which specify the requirements for transmission of
the certified record are explained in Section 10.4. the certified record are explained in Section 10.4.
Section 10.5 discusses the scope and standards of review likely to be applicable Section 10.5 discusses the scope and standards of review likely to be applicable
to appeals from orders in cases of sexual violence. to appeals from orders in cases of sexual violence.
Finally, Section 10.6 provides a brief discussion of post conviction procedures. Finally, Section 10.6 provides a brief discussion of post conviction procedures.
10.2 APPEALABLE ORDERS 10.2 APPEALABLE ORDERS
The Superior Court has exclusive appellate jurisdiction of all appeals from final The Superior Court has exclusive appellate jurisdiction of all appeals from final
orders of the courts of common pleas, regardless of the nature of the controversy or the orders of the courts of common pleas, regardless of the nature of the controversy or the
amount involved, except such classes of appeals as are by any provision of the Judicial amount involved, except such classes of appeals as are by any provision of the Judicial
Code within the exclusive jurisdiction of the Supreme Court or the Commonwealth Code within the exclusive jurisdiction of the Supreme Court or the Commonwealth
Court. 42 Pa.Cons.Stat.Ann. 742. Court. 42 Pa.Cons.Stat.Ann. 742.
A. Final Orders A. Final Orders
An appeal may be taken as of right from any final order of a trial court. Pa.R.A.P. An appeal may be taken as of right from any final order of a trial court. Pa.R.A.P.
341(a). The purpose of limiting appeals to final orders is to avoid piecemeal appeals. 341(a). The purpose of limiting appeals to final orders is to avoid piecemeal appeals.
Commonwealth v. Sartin, 708 A.2d 121, 122 (Pa. Super. 1998). Commonwealth v. Sartin, 708 A.2d 121, 122 (Pa. Super. 1998).
An appeal before final judgment will be permitted, however, when the defense An appeal before final judgment will be permitted, however, when the defense
can demonstrate exceptional circumstances, i.e., when the need for immediate review can demonstrate exceptional circumstances, i.e., when the need for immediate review
outweighs the purposes of the final judgment rule. Commonwealth v. Scott, 578 A.2d outweighs the purposes of the final judgment rule. Commonwealth v. Scott, 578 A.2d
1. Definition 1. Definition
Pa.R.A.P. 341(b) defines a final order in a criminal matter as any order that Pa.R.A.P. 341(b) defines a final order in a criminal matter as any order that
disposes of all claims or of all parties, or that is expressly defined as a final order disposes of all claims or of all parties, or that is expressly defined as a final order
by statute. by statute.
(a) Examples of Final Orders (a) Examples of Final Orders
Judgment of sentence. Commonwealth v. Heilman, 876 A.2d 1021, Judgment of sentence. Commonwealth v. Heilman, 876 A.2d 1021,
1026 (Pa. Super. 2005).1 1026 (Pa. Super. 2005).1
Orders of disposition in juvenile cases. In re M.D., 839 A.2d 1116, Orders of disposition in juvenile cases. In re M.D., 839 A.2d 1116,
1118 (Pa. Super. 2003).2 1118 (Pa. Super. 2003).2
Ordinarily, the denial of a motion for dismissal on double jeopardy Ordinarily, the denial of a motion for dismissal on double jeopardy
grounds.3 Commonwealth v. Orie, 610 Pa. 552, 22 A.3d 1021, 1024 grounds.3 Commonwealth v. Orie, 610 Pa. 552, 22 A.3d 1021, 1024
(2011); Commonwealth v. Minnis, 83 A.3d 1047 (Pa. Super. 2014) (2011); Commonwealth v. Minnis, 83 A.3d 1047 (Pa. Super. 2014)
(en banc). (en banc).
Any pretrial order that serves to put the litigants out of court Any pretrial order that serves to put the litigants out of court
by ending the litigation or entirely disposing of the case. by ending the litigation or entirely disposing of the case.
Commonwealth v. Rosario, 538 Pa. 400, 404, 648 A.2d 1172, 1174 Commonwealth v. Rosario, 538 Pa. 400, 404, 648 A.2d 1172, 1174
(1994). (1994).
(b) Examples of Non-Appealable Orders (b) Examples of Non-Appealable Orders
Generally, pretrial orders, such as when a defense motion for Generally, pretrial orders, such as when a defense motion for
suppression is denied, are considered interlocutory and not suppression is denied, are considered interlocutory and not
appealable. Commonwealth v. Matis, 551 Pa. 220, 230, 710 A.2d appealable. Commonwealth v. Matis, 551 Pa. 220, 230, 710 A.2d
12, 17 (1998). 12, 17 (1998).
Order granting severance of criminal informations is not a final Order granting severance of criminal informations is not a final
order. Commonwealth v. Smith, 518 Pa. 524, 527, 544 A.2d 943, order. Commonwealth v. Smith, 518 Pa. 524, 527, 544 A.2d 943,
945 (1988); Commonwealth v. White, 818 A.2d 555, 558 (Pa. 945 (1988); Commonwealth v. White, 818 A.2d 555, 558 (Pa.
Super. 2003), rev. in part on other grounds, 589 Pa. 642, 910 A.2d Super. 2003), rev. in part on other grounds, 589 Pa. 642, 910 A.2d
648 (2006). 648 (2006).
1 It is well-established that a criminal defendant may take an appeal only from the judgment of sentence. An appeal from any prior order 1 It is well-established that a criminal defendant may take an appeal only from the judgment of sentence. An appeal from any prior order
must be quashed. Commonwealth. v. McPherson, 533 A.2d 1060, 1061 (Pa. Super. 1987) (internal citations omitted). An appeal prior must be quashed. Commonwealth. v. McPherson, 533 A.2d 1060, 1061 (Pa. Super. 1987) (internal citations omitted). An appeal prior
to final judgment is permitted in exceptional circumstances, such as to prevent a great injustice, or when the issue involved is one of great to final judgment is permitted in exceptional circumstances, such as to prevent a great injustice, or when the issue involved is one of great
public importance. Commonwealth v. Swartz, 579 A.2d 978, 980 (Pa. Super. 1990). public importance. Commonwealth v. Swartz, 579 A.2d 978, 980 (Pa. Super. 1990).
2 Although the Juvenile Act does not provide a right of appeal, a juveniles right of appeal stems from Article V Section 9 of the Pennsylvania 2 Although the Juvenile Act does not provide a right of appeal, a juveniles right of appeal stems from Article V Section 9 of the Pennsylvania
Constitution. In re J.E.D., 879 A.2d 288, 290 (Pa. Super. 2005), appeal denied, 586 Pa. 713, 889 A.2d 1216 (2005). Constitution. In re J.E.D., 879 A.2d 288, 290 (Pa. Super. 2005), appeal denied, 586 Pa. 713, 889 A.2d 1216 (2005).
3 Denial of a petition for dismissal on double jeopardy grounds is not appealable where the trial court makes a finding that the petition was 3 Denial of a petition for dismissal on double jeopardy grounds is not appealable where the trial court makes a finding that the petition was
frivolous. Commonwealth v. Brady, 510 Pa. 336, 346, 508 A.2d 286, 291 (1986). A defendant may seek preliminary appellate review of frivolous. Commonwealth v. Brady, 510 Pa. 336, 346, 508 A.2d 286, 291 (1986). A defendant may seek preliminary appellate review of
the finding of frivolousness by way of a petition for review in the Superior Court utilizing Pa.R.a.P. 1511. Commonwealth v. Orie, the finding of frivolousness by way of a petition for review in the Superior Court utilizing Pa.R.a.P. 1511. Commonwealth v. Orie,
610 Pa. 552, 22 a.3d 1021, 1028 (2011). 610 Pa. 552, 22 a.3d 1021, 1028 (2011).
Denial of pretrial habeas corpus petition based on the insufficiency Denial of pretrial habeas corpus petition based on the insufficiency
of evidence is not appealable, absent a showing of exceptional of evidence is not appealable, absent a showing of exceptional
circumstances. Commonwealth v. Hess, 489 Pa. 580, 588589, circumstances. Commonwealth v. Hess, 489 Pa. 580, 588589,
414 A.2d 1043, 1047-1048 (1980). 414 A.2d 1043, 1047-1048 (1980).
Juvenile review order that maintains the status quo. In re M.D., Juvenile review order that maintains the status quo. In re M.D.,
2. Appeals by the Commonwealth in Criminal Cases 2. Appeals by the Commonwealth in Criminal Cases
Orders in criminal cases which are considered final are immediately Orders in criminal cases which are considered final are immediately
appealable under Pa.R.A.P. 341(e). Pennsylvania Rule of Appellate Procedure appealable under Pa.R.A.P. 341(e). Pennsylvania Rule of Appellate Procedure
341(e) provides: 341(e) provides:
(e) Criminal orders. An appeal may be taken by the (e) Criminal orders. An appeal may be taken by the
Commonwealth from any final order in a criminal matter Commonwealth from any final order in a criminal matter
only in the circumstances provided by law.4 only in the circumstances provided by law.4
In Commonwealth v. Garcia, 72 A.3d 681 (Pa. Super. 2013), the In Commonwealth v. Garcia, 72 A.3d 681 (Pa. Super. 2013), the
Commonwealth was permitted to file an immediate appeal after the trial court Commonwealth was permitted to file an immediate appeal after the trial court
dismissed criminal charges based upon the contention that the Commonwealth dismissed criminal charges based upon the contention that the Commonwealth
had failed to comply with a pretrial discovery order. Id. at 682. had failed to comply with a pretrial discovery order. Id. at 682.
(a) Habeas Corpus (a) Habeas Corpus
Order granting pretrial habeas corpus petition is final and appealable Order granting pretrial habeas corpus petition is final and appealable
by the Commonwealth. Commonwealth v. Jackson, 849 A.2d 1254, 1256 (Pa. by the Commonwealth. Commonwealth v. Jackson, 849 A.2d 1254, 1256 (Pa.
Super. 2004). Super. 2004).
(b) Severance (b) Severance
Order granting severance of two or more criminal informations is Order granting severance of two or more criminal informations is
interlocutory and not appealable. Commonwealth v. Smith, 518 Pa. 524, 527, interlocutory and not appealable. Commonwealth v. Smith, 518 Pa. 524, 527,
544 A.2d 943, 945 (1988). In Smith, a plurality decision, an order for severance 544 A.2d 943, 945 (1988). In Smith, a plurality decision, an order for severance
did not constitute one that substantially handicapped the prosecution because did not constitute one that substantially handicapped the prosecution because
the Commonwealth still was permitted to seek convictions on the charges it the Commonwealth still was permitted to seek convictions on the charges it
filed, albeit in two separate proceedings rather than one. filed, albeit in two separate proceedings rather than one.
B. Interlocutory Orders Appealable as of Right B. Interlocutory Orders Appealable as of Right
1. Change of Venue or Venire in Criminal Cases 1. Change of Venue or Venire in Criminal Cases
An appeal may be taken as of right by the defendant or the prosecution An appeal may be taken as of right by the defendant or the prosecution
4 Pa.R.A.P. 341(e). 4 Pa.R.A.P. 341(e).
from an order changing venue or venire in a criminal proceeding. Pa.R.A.P. 311(a) from an order changing venue or venire in a criminal proceeding. Pa.R.A.P. 311(a)
(3); See, e.g., Commonwealth v. Shoop, 617 A.2d 351, 352 n.1 (Pa. Super. 1992) (3); See, e.g., Commonwealth v. Shoop, 617 A.2d 351, 352 n.1 (Pa. Super. 1992)
(Commonwealth may appeal from order granting change of venue). However, (Commonwealth may appeal from order granting change of venue). However,
an order denying a petition for a change of venue or venire is not appealable. an order denying a petition for a change of venue or venire is not appealable.
Pa.R.A.P. 311, note; Commonwealth v. Swanson, 424 Pa. 192, 194, 225 A.2d 231, Pa.R.A.P. 311, note; Commonwealth v. Swanson, 424 Pa. 192, 194, 225 A.2d 231,
232-233 (1967).5 232-233 (1967).5
An appeal taken under Rule 311(a)(3) must be filed within ten days of the An appeal taken under Rule 311(a)(3) must be filed within ten days of the
date the order changing venue or venire was entered. Pa.R.A.P. 903(c)(1)(i). date the order changing venue or venire was entered. Pa.R.A.P. 903(c)(1)(i).
2. New Trials in Criminal Cases 2. New Trials in Criminal Cases
An appeal may be taken as of right from an order in a criminal proceeding An appeal may be taken as of right from an order in a criminal proceeding
awarding a new trial where (1) the defendant claims that the proper disposition awarding a new trial where (1) the defendant claims that the proper disposition
of the matter would be an absolute discharge, or (2) where the Commonwealth of the matter would be an absolute discharge, or (2) where the Commonwealth
claims that the lower court committed an error of law. Pa.R.A.P. 311(a) claims that the lower court committed an error of law. Pa.R.A.P. 311(a)
(6); Commonwealth v. Campbell, 421 A.2d 681, 683 (Pa. Super. 1980) (not (6); Commonwealth v. Campbell, 421 A.2d 681, 683 (Pa. Super. 1980) (not
interlocutory where defendant contended that proper disposition was absolute interlocutory where defendant contended that proper disposition was absolute
discharge); Commonwealth v. McDougall, 841 A.2d 535, 536-537 (Pa. Super. discharge); Commonwealth v. McDougall, 841 A.2d 535, 536-537 (Pa. Super.
2003), appeal denied, 579 Pa. 701, 857 A.2d 678 (2004) (Commonwealth 2003), appeal denied, 579 Pa. 701, 857 A.2d 678 (2004) (Commonwealth
permitted to appeal trial courts order as an alleged error of law trial court had permitted to appeal trial courts order as an alleged error of law trial court had
granted defendants motion to withdraw guilty plea after sentencing). granted defendants motion to withdraw guilty plea after sentencing).
The granting of a mistrial due to a deadlocked jury is not the equivalent of The granting of a mistrial due to a deadlocked jury is not the equivalent of
an award of a new trial and is, thus, not appealable. Commonwealth v. McPherson, an award of a new trial and is, thus, not appealable. Commonwealth v. McPherson,
3. Recusal 3. Recusal
The Commonwealth was entitled to an interlocutory appeal as of right The Commonwealth was entitled to an interlocutory appeal as of right
from trial courts denial of Commonwealths motion for recusal in murder from trial courts denial of Commonwealths motion for recusal in murder
prosecution, where Commonwealth certified in good faith that denial of motion prosecution, where Commonwealth certified in good faith that denial of motion
would substantially handicap its prosecution of case. Commonwealth v. White, would substantially handicap its prosecution of case. Commonwealth v. White,
589 Pa. 642, 650-651, 910 A.2d 648, 653-655 (2006). 589 Pa. 642, 650-651, 910 A.2d 648, 653-655 (2006).
4. Appeals With Commonwealth Certification 4. Appeals With Commonwealth Certification
The Commonwealth may take an appeal as of right from an order that The Commonwealth may take an appeal as of right from an order that
does not end the entire case where it certifies in the notice of appeal that the does not end the entire case where it certifies in the notice of appeal that the
order will terminate or substantially handicap the prosecution. Pa.R.A.P. 311(d); order will terminate or substantially handicap the prosecution. Pa.R.A.P. 311(d);
Commonwealth v. Dillon, 863 A.2d 597, 600 (Pa. Super. 2004), affd, 592 Pa. 351, Commonwealth v. Dillon, 863 A.2d 597, 600 (Pa. Super. 2004), affd, 592 Pa. 351,
5 The note to Rule 311(a)(3) states that: 5 The note to Rule 311(a)(3) states that:
Pa.R.Crim.P. 584 (motion for change of venue or change of venire) treats changes of venue and venire the same. Thus, an order changing Pa.R.Crim.P. 584 (motion for change of venue or change of venire) treats changes of venue and venire the same. Thus, an order changing
venire is appealable by the defendant or the Commonwealth, while an order refusing to change venire is not. venire is appealable by the defendant or the Commonwealth, while an order refusing to change venire is not.
925 A.2d 131 (2007).6 Once the required certification is made, the Commonwealth 925 A.2d 131 (2007).6 Once the required certification is made, the Commonwealth
is not required to demonstrate that the prosecution has in fact been handicapped. is not required to demonstrate that the prosecution has in fact been handicapped.
Commonwealth v. Gordon, 652 A.2d 317, 323 n.8 (Pa. Super. 1994), affd, 543 Pa. Commonwealth v. Gordon, 652 A.2d 317, 323 n.8 (Pa. Super. 1994), affd, 543 Pa.
513, 673 A.2d 866 (1996). 513, 673 A.2d 866 (1996).
(a) Suppression Orders (a) Suppression Orders
An order granting a defendants motion to suppress evidence is An order granting a defendants motion to suppress evidence is
appealable pursuant to Pa.R.A.P. 311(d). Commonwealth v. Bender, 811 appealable pursuant to Pa.R.A.P. 311(d). Commonwealth v. Bender, 811
A.2d 1016, 1018 (Pa. Super. 2002). The Commonwealth must certify in good A.2d 1016, 1018 (Pa. Super. 2002). The Commonwealth must certify in good
faith that the suppression order terminates or substantially handicaps the faith that the suppression order terminates or substantially handicaps the
prosecution. The rationale of Rule 311(d) recognizes that, where incriminating prosecution. The rationale of Rule 311(d) recognizes that, where incriminating
evidence suppressed, and a defendant acquitted, the Commonwealth would evidence suppressed, and a defendant acquitted, the Commonwealth would
be precluded from again trying the case due to double jeopardy restrictions. be precluded from again trying the case due to double jeopardy restrictions.
Commonwealth v. Cosnek, 575 Pa. 411, 416417, 836 A.2d 871, 873-874 Commonwealth v. Cosnek, 575 Pa. 411, 416417, 836 A.2d 871, 873-874
(2003). (2003).
Generally, denial of a Commonwealths motion in limine to exclude a Generally, denial of a Commonwealths motion in limine to exclude a
defendants evidence is not appealable. Commonwealth v. Cosnek, 575 Pa. defendants evidence is not appealable. Commonwealth v. Cosnek, 575 Pa.
411, 419420, 836 A.2d 871, 876-877 (2003). See also, Commonwealth v. 411, 419420, 836 A.2d 871, 876-877 (2003). See also, Commonwealth v.
Shearer, 584 Pa. 134, 882 A.2d 462 (2005). Shearer, 584 Pa. 134, 882 A.2d 462 (2005).
However, an order that denies a Commonwealth motion to exclude However, an order that denies a Commonwealth motion to exclude
evidence pursuant to the Rape Shield Law, 18 Pa.Cons.Stat.Ann. 3104, evidence pursuant to the Rape Shield Law, 18 Pa.Cons.Stat.Ann. 3104,
has the same effect as a suppression order and is, therefore, appealable. has the same effect as a suppression order and is, therefore, appealable.
Commonwealth v. Jones, 826 A.2d 900, 907 (Pa. Super. 2003). Commonwealth v. Jones, 826 A.2d 900, 907 (Pa. Super. 2003).
(b) Quashal Order (b) Quashal Order
The Commonwealth is permitted to appeal an order of the trial court The Commonwealth is permitted to appeal an order of the trial court
which quashes a criminal charge. A quashal order terminates the prosecution which quashes a criminal charge. A quashal order terminates the prosecution
as to the quashed charge, and therefore is appealable when accompanied as to the quashed charge, and therefore is appealable when accompanied
by the certification in Rule 311(d). The Supreme Court also found that the by the certification in Rule 311(d). The Supreme Court also found that the
Commonwealth may appeal it as a final order because an order quashing a Commonwealth may appeal it as a final order because an order quashing a
charge is unquestionably final . . . . Commonwealth v. Karetny, 583 Pa. 514, charge is unquestionably final . . . . Commonwealth v. Karetny, 583 Pa. 514,
527, 880 A.2d 505, 512-513 (2005). 527, 880 A.2d 505, 512-513 (2005).
(c) Secure Presence of Necessary Witness (c) Secure Presence of Necessary Witness
An order denying the Commonwealths motion for a continuance to An order denying the Commonwealths motion for a continuance to
secure the presence of a necessary witness is appealable. Commonwealth v. secure the presence of a necessary witness is appealable. Commonwealth v.
Matis, 551 Pa. 220, 233, 710 A.2d 12, 18 (1998). Matis, 551 Pa. 220, 233, 710 A.2d 12, 18 (1998).
C. Interlocutory Appeal by Permission C. Interlocutory Appeal by Permission
6 See also Pa.R.A.P. 904(e): When the Commonwealth takes an appeal pursuant to [Pa.R.A.P.] 311(d), the notice of appeal shall include 6 See also Pa.R.A.P. 904(e): When the Commonwealth takes an appeal pursuant to [Pa.R.A.P.] 311(d), the notice of appeal shall include
a certification by counsel that the order will terminate or substantially handicap the prosecution. a certification by counsel that the order will terminate or substantially handicap the prosecution.
The party seeking review, in situations in which the order under scrutiny does The party seeking review, in situations in which the order under scrutiny does
not fall under Pa.R.A.P. 341 as a final order or as an interlocutory order which may not fall under Pa.R.A.P. 341 as a final order or as an interlocutory order which may
be appealed as of right under Pa.R.A.P. 311, may file for a permissive appeal under be appealed as of right under Pa.R.A.P. 311, may file for a permissive appeal under
Pa.R.A.P. 312. Rule 312 states: An appeal from an interlocutory order may be taken by Pa.R.A.P. 312. Rule 312 states: An appeal from an interlocutory order may be taken by
permission pursuant to Chapter 13 (interlocutory appeals by permission). Pa.R.A.P. permission pursuant to Chapter 13 (interlocutory appeals by permission). Pa.R.A.P.
1311 incorporates the certification requirement from 42 Pa.Cons.Stat.Ann. 702(b): 1311 incorporates the certification requirement from 42 Pa.Cons.Stat.Ann. 702(b):
(a) General rule. An appeal may be taken by permission under (a) General rule. An appeal may be taken by permission under
42 Pa.C.S. 702(b) (interlocutory appeals by permission) from 42 Pa.C.S. 702(b) (interlocutory appeals by permission) from
any interlocutory order of a lower court or other governmental any interlocutory order of a lower court or other governmental
unit. See Rule 312 (interlocutory appeals by permission).7 unit. See Rule 312 (interlocutory appeals by permission).7
The procedure for an interlocutory appeal taken by permission is set forth by The procedure for an interlocutory appeal taken by permission is set forth by
statute: statute:
When a court or other government unit, in making an interlocutory When a court or other government unit, in making an interlocutory
order in a matter in which its final order would be within the order in a matter in which its final order would be within the
jurisdiction of an appellate court, shall be of the opinion that jurisdiction of an appellate court, shall be of the opinion that
such order involves a controlling question of law as to which such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the immediate appeal from the order may materially advance the
ultimate termination of the matter, it shall so state in such order. ultimate termination of the matter, it shall so state in such order.
The appellate court may thereupon, in its discretion, permit an The appellate court may thereupon, in its discretion, permit an
appeal to be taken from such interlocutory order. appeal to be taken from such interlocutory order.
42 Pa.Cons.Stat.Ann. 702(b). Rule 1311 of the Rules of Appellate Procedure governs 42 Pa.Cons.Stat.Ann. 702(b). Rule 1311 of the Rules of Appellate Procedure governs
petitions for permission to appeal. petitions for permission to appeal.
An application for amendment of an interlocutory order to include the express An application for amendment of an interlocutory order to include the express
statement specified in Section 702(b) must be filed in the trial court within 30 days after statement specified in Section 702(b) must be filed in the trial court within 30 days after
entry of the interlocutory order. The requisite language of Section 702(b) provides: entry of the interlocutory order. The requisite language of Section 702(b) provides:
[T]hat such order involves a controlling question of law as to [T]hat such order involves a controlling question of law as to
which there is substantial ground for difference of opinion and which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance that an immediate appeal from the order may materially advance
the ultimate termination of the matter.8 the ultimate termination of the matter.8
42 Pa.Cons.Stat.Ann. 702(b); see also Pa.R.A.P. 1311; Commonwealth v. Dennis, 42 Pa.Cons.Stat.Ann. 702(b); see also Pa.R.A.P. 1311; Commonwealth v. Dennis,
580 Pa. 95, 102, 859 A.2d 1270, 1275 (2004). Once the trial court has certified the order, 580 Pa. 95, 102, 859 A.2d 1270, 1275 (2004). Once the trial court has certified the order,
the appellate court has full discretion in deciding whether to accept appellate review. the appellate court has full discretion in deciding whether to accept appellate review.
Id., at 102-103, 859 A.2d at 1275. The certification is a jurisdictional prerequisite for Id., at 102-103, 859 A.2d at 1275. The certification is a jurisdictional prerequisite for
the interlocutory appeal. Herb v. Snyder, 686 A.2d 412, 414 (Pa. Super. 1996), appeal the interlocutory appeal. Herb v. Snyder, 686 A.2d 412, 414 (Pa. Super. 1996), appeal
7 Pa.R.A.P. 1311. 7 Pa.R.A.P. 1311.
8 Pa.R.A.P. 1312 specifies that a petition for permission to appeal shall include (1) a statement concerning the basis for the appellate courts 8 Pa.R.A.P. 1312 specifies that a petition for permission to appeal shall include (1) a statement concerning the basis for the appellate courts
jurisdiction, (2) the text of the order in question, (3) a concise statement of the case, (4) the controlling question(s) of law presented for jurisdiction, (2) the text of the order in question, (3) a concise statement of the case, (4) the controlling question(s) of law presented for
review, (5) a concise statement concerning why a substantial ground exists for a difference of opinion, (6) copies of the opinions related review, (5) a concise statement concerning why a substantial ground exists for a difference of opinion, (6) copies of the opinions related
to the order in question, and (7) the language of pertinent constitutional provisions or statutes. to the order in question, and (7) the language of pertinent constitutional provisions or statutes.
denied, 548 Pa. 659, 698 A.2d 67 (1997). Pa.R.A.P. 1311(b) provides the procedure for denied, 548 Pa. 659, 698 A.2d 67 (1997). Pa.R.A.P. 1311(b) provides the procedure for
the party to file for the interlocutory appeal in the Superior Court. the party to file for the interlocutory appeal in the Superior Court.
Therefore, an appeal may be taken from an interlocutory order pursuant to a Therefore, an appeal may be taken from an interlocutory order pursuant to a
petition for permission to appeal if all of the following elements are satisfied: petition for permission to appeal if all of the following elements are satisfied:
(1) the order involves a controlling question of law; (1) the order involves a controlling question of law;
(2) there is a substantial ground for difference of opinion regarding (2) there is a substantial ground for difference of opinion regarding
the question of law; and the question of law; and
(3) an immediate appeal would materially advance the ultimate (3) an immediate appeal would materially advance the ultimate
termination of the matter. termination of the matter.
The certified order must contain the statement prescribed by 42 Pa.Cons.Stat. The certified order must contain the statement prescribed by 42 Pa.Cons.Stat.
Ann. 702(b), and the appellate court then decides whether to accept appellate review. Ann. 702(b), and the appellate court then decides whether to accept appellate review.
Commonwealth v. Dennis, 580 Pa. 95, 102, 859 A.2d 1270, 1275 (2004). The appellate Commonwealth v. Dennis, 580 Pa. 95, 102, 859 A.2d 1270, 1275 (2004). The appellate
court may decline to exercise jurisdiction over the appeal even after the certification by court may decline to exercise jurisdiction over the appeal even after the certification by
the trial court. Kensey v. Kensey, 877 A.2d 1284, 1289 (Pa. Super. 2005). the trial court. Kensey v. Kensey, 877 A.2d 1284, 1289 (Pa. Super. 2005).
Where the trial court refuses to amend the order, the petitioner may file a petition Where the trial court refuses to amend the order, the petitioner may file a petition
for review9 with the appropriate appellate court to determine whether the trial courts for review9 with the appropriate appellate court to determine whether the trial courts
refusal was so egregious as to justify prerogative appellate correction. Pa.R.A.P. 1311, refusal was so egregious as to justify prerogative appellate correction. Pa.R.A.P. 1311,
note. A petition for permission to appeal does not stay the proceedings of the trial court note. A petition for permission to appeal does not stay the proceedings of the trial court
unless the trial court so orders. 42 Pa.Cons.Stat.Ann. 702(c). The requirements for the unless the trial court so orders. 42 Pa.Cons.Stat.Ann. 702(c). The requirements for the
petition for review are specified in Pa.R.A.P. 1513. petition for review are specified in Pa.R.A.P. 1513.
1. Petition for Review 1. Petition for Review
In Commonwealth v. Boyle, 516 Pa. 105, 532 A.2d 306 (1987), the In Commonwealth v. Boyle, 516 Pa. 105, 532 A.2d 306 (1987), the
defendant filed a pre-trial motion, which was denied, seeking dismissal of the defendant filed a pre-trial motion, which was denied, seeking dismissal of the
charges against him on the grounds that the trial court did not have jurisdiction charges against him on the grounds that the trial court did not have jurisdiction
over the case. Following defendants petition to amend the order to include the over the case. Following defendants petition to amend the order to include the
language required by Section 702(b), the trial court failed to act on the petition. language required by Section 702(b), the trial court failed to act on the petition.
Thereafter, defendant filed a petition for review, which the Superior Court granted. Thereafter, defendant filed a petition for review, which the Superior Court granted.
On appeal to the Pennsylvania Supreme Court, that Court noted that the effect of On appeal to the Pennsylvania Supreme Court, that Court noted that the effect of
the Superior Courts order was (1) to imply that the trial court had abused its the Superior Courts order was (1) to imply that the trial court had abused its
discretion, and (2) to supply the certification required by Section 702(b). Id., at discretion, and (2) to supply the certification required by Section 702(b). Id., at
111, 532 A.2d at 309. 111, 532 A.2d at 309.
In Commonwealth v. Tilley, 566 Pa. 312, 780 A.2d 649 (2001), the In Commonwealth v. Tilley, 566 Pa. 312, 780 A.2d 649 (2001), the
defendant, through post conviction proceedings, filed a discovery motion seeking defendant, through post conviction proceedings, filed a discovery motion seeking
all data regarding the races of the members of defendants jury. The trial court all data regarding the races of the members of defendants jury. The trial court
granted the motion and the Commonwealth requested that the trial court certify granted the motion and the Commonwealth requested that the trial court certify
the order for appeal. The trial court refused and the Commonwealth, thereafter, the order for appeal. The trial court refused and the Commonwealth, thereafter,
9 See Chapter 15 of the Rules of Appellate Procedure (Petition for Review). 9 See Chapter 15 of the Rules of Appellate Procedure (Petition for Review).
filed a notice of appeal with the Supreme Court10 and argued that the Supreme filed a notice of appeal with the Supreme Court10 and argued that the Supreme
Court could exercise jurisdiction to review the merits pursuant to a petition for Court could exercise jurisdiction to review the merits pursuant to a petition for
review. Id., at 316, 780 A.2d at 651. Upon review of the three principles governing review. Id., at 316, 780 A.2d at 651. Upon review of the three principles governing
petitions for review, the Supreme Court accepted jurisdiction of the appeal. Id., at petitions for review, the Supreme Court accepted jurisdiction of the appeal. Id., at
316-317, 780 A.2d at 651-652. 316-317, 780 A.2d at 651-652.
D. Collateral Orders D. Collateral Orders
An appeal may be taken as of right from a collateral order of a lower court. An appeal may be taken as of right from a collateral order of a lower court.
Pa.R.A.P. 313(a). Pa.R.A.P. 313(a).
A collateral order is an order separable from and collateral to the A collateral order is an order separable from and collateral to the
main cause of action where the right involved is too important main cause of action where the right involved is too important
to be denied review and the question presented is such that if to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim review is postponed until final judgment in the case, the claim
will be irreparably lost. will be irreparably lost.
Pa.R.A.P. 313(b). Pa.R.A.P. 313(b).
An order is collateral if (1) the issue surrounding the disputed order may be An order is collateral if (1) the issue surrounding the disputed order may be
addressed without analyzing the ultimate issue in the underlying case, and (2) the issue addressed without analyzing the ultimate issue in the underlying case, and (2) the issue
must involve rights deeply rooted in public policy going beyond the particular litigation must involve rights deeply rooted in public policy going beyond the particular litigation
at hand. J.S. v. Whetzel, 860 A.2d 1112, 1117 (Pa. Super. 2004). at hand. J.S. v. Whetzel, 860 A.2d 1112, 1117 (Pa. Super. 2004).
An order that falls under Rule 313 is immediately appealable as of right simply by An order that falls under Rule 313 is immediately appealable as of right simply by
filing a notice of appeal. Pa.R.A.P. 313, note. filing a notice of appeal. Pa.R.A.P. 313, note.
In Commonwealth v. Sartin, 708 A.2d 121, 122 (Pa. Super. 1998), the Superior In Commonwealth v. Sartin, 708 A.2d 121, 122 (Pa. Super. 1998), the Superior
Court interpreted Pa.R.A.P. 313 and held that the collateral order rule: Court interpreted Pa.R.A.P. 313 and held that the collateral order rule:
[P]rovides that appeals may be taken from orders that are [1] [P]rovides that appeals may be taken from orders that are [1]
separable from and collateral to the main cause of action [2] where separable from and collateral to the main cause of action [2] where
the right involved is too important to be denied review and [3] the the right involved is too important to be denied review and [3] the
question presented is such that if review is postponed until final question presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost. Pa.R.A.P. judgment in the case, the claim will be irreparably lost. Pa.R.A.P.
313(b). This third prong has also been interpreted to mean that 313(b). This third prong has also been interpreted to mean that
the matter must be effectively unreviewable on appeal from final the matter must be effectively unreviewable on appeal from final
judgment. judgment.
708 A.2d at 122 (citations omitted). 708 A.2d at 122 (citations omitted).
A court may conduct a balancing test between the nature of the potentially A court may conduct a balancing test between the nature of the potentially
unprotected right and the efficiency interest of the final judgment rule. J.S. v. Whetzel, unprotected right and the efficiency interest of the final judgment rule. J.S. v. Whetzel,
860 A.2d at 1117. 860 A.2d at 1117.
10 Since Tilley was a capital case, the defendant appealed directly to the Supreme Court pursuant to 42 Pa.Cons.stat.ann. 9711(h). 10 Since Tilley was a capital case, the defendant appealed directly to the Supreme Court pursuant to 42 Pa.Cons.stat.ann. 9711(h).
2. Collateral Orders in Criminal Cases 2. Collateral Orders in Criminal Cases
Order denying a motion to dismiss an indictment on double Order denying a motion to dismiss an indictment on double
jeopardy grounds is collateral and appealable if the trial court has jeopardy grounds is collateral and appealable if the trial court has
found that the motion was not frivolous. Commonwealth v. Brady, found that the motion was not frivolous. Commonwealth v. Brady,
510 Pa. 336, 341, 508 A.2d 286, 288 (1986). 510 Pa. 336, 341, 508 A.2d 286, 288 (1986).
Order limiting publicity over court proceedings in criminal case. Order limiting publicity over court proceedings in criminal case.
Commonwealth v. Lambert, 723 A.2d 684, 688 (Pa. Super. 1998). Commonwealth v. Lambert, 723 A.2d 684, 688 (Pa. Super. 1998).
Order granting the defense request to have a child victim in a Order granting the defense request to have a child victim in a
sexual violence case be compelled to submit to a psychological sexual violence case be compelled to submit to a psychological
examination to determine whether he was competent to testify. examination to determine whether he was competent to testify.
Commonwealth v. Shearer, 584 Pa. 134, 882 A.2d 462 (2005). Commonwealth v. Shearer, 584 Pa. 134, 882 A.2d 462 (2005).
10.3 OPINION IN SUPPORT OF ORDER 10.3 OPINION IN SUPPORT OF ORDER
A. Pennsylvania Rule of Appellate Procedure 1925 A. Pennsylvania Rule of Appellate Procedure 1925
Pennsylvania Rule of Appellate Procedure 1925 is intended to aid trial judges in Pennsylvania Rule of Appellate Procedure 1925 is intended to aid trial judges in
identifying and focusing upon those issues which the appellant plans to raise on appeal. identifying and focusing upon those issues which the appellant plans to raise on appeal.
With reference to the decisions of the trial court that are being challenged on appeal, With reference to the decisions of the trial court that are being challenged on appeal,
when a trial court uses Rule 1925 to either specify in the record where the reasons when a trial court uses Rule 1925 to either specify in the record where the reasons
in support of the trial courts decisions may be found, or files a Rule 1925 opinion in support of the trial courts decisions may be found, or files a Rule 1925 opinion
explaining its rationale, the appellate court can conduct a meaningful review. The rule explaining its rationale, the appellate court can conduct a meaningful review. The rule
gives the trial court the opportunity to order the appellant to file a statement of errors gives the trial court the opportunity to order the appellant to file a statement of errors
so that the trial judge can appropriately address those issues which will be argued to the so that the trial judge can appropriately address those issues which will be argued to the
appellate court. appellate court.
Pa.R.A.P. 1925 was extensively amended in 2007 and 2009. Pa.R.A.P. 1925 was extensively amended in 2007 and 2009.
The revisions were designed to resolve a number of problems The revisions were designed to resolve a number of problems
that had complicated enforcement of the Rule. Those problems that had complicated enforcement of the Rule. Those problems
included a relatively brief amount of time allotted for filing a included a relatively brief amount of time allotted for filing a
Statement [of errors complained of on appeal], uncertainty Statement [of errors complained of on appeal], uncertainty
surrounding an appellants right to an extension of time for filing surrounding an appellants right to an extension of time for filing
a Statement, and requirements that a Statement be concise while a Statement, and requirements that a Statement be concise while
at the same time setting forth all objections to the order at issue. at the same time setting forth all objections to the order at issue.
The 2007 amendments addressed these difficulties and made The 2007 amendments addressed these difficulties and made
sweeping changes which included a longer period for filing, explicit sweeping changes which included a longer period for filing, explicit
provisions for extensions of time to file, and detailed direction on provisions for extensions of time to file, and detailed direction on
the information a Statement should include. the information a Statement should include.
Commonwealth v. Gravely, 601 Pa. 68, 74, 970 A.2d 1137, 1140 (2009). Commonwealth v. Gravely, 601 Pa. 68, 74, 970 A.2d 1137, 1140 (2009).
Pa.R.A.P. 1925 provides, in pertinent part: Pa.R.A.P. 1925 provides, in pertinent part:
Rule 1925. Opinion in Support of Order Rule 1925. Opinion in Support of Order
(a) Opinion in support of order. (a) Opinion in support of order.
(1) General rule.--Except as otherwise prescribed by this rule, (1) General rule.--Except as otherwise prescribed by this rule,
upon receipt of the notice of appeal, the judge who entered upon receipt of the notice of appeal, the judge who entered
the order giving rise to the notice of appeal, if the reasons for the order giving rise to the notice of appeal, if the reasons for
the order do not already appear of record, shall forthwith file the order do not already appear of record, shall forthwith file
of record at least a brief opinion of the reasons for the order, of record at least a brief opinion of the reasons for the order,
or for the rulings or other errors complained of, or shall specify or for the rulings or other errors complained of, or shall specify
in writing the place in the record where such reasons may be in writing the place in the record where such reasons may be
found. found.
If the case appealed involves a ruling issued by a judge who If the case appealed involves a ruling issued by a judge who
was not the judge entering the order giving rise to the notice of was not the judge entering the order giving rise to the notice of
appeal, the judge entering the order giving rise to the notice of appeal, the judge entering the order giving rise to the notice of
appeal may request that the judge who made the earlier ruling appeal may request that the judge who made the earlier ruling
provide an opinion to be filed in accordance with the standards provide an opinion to be filed in accordance with the standards
above to explain the reasons for that ruling. above to explain the reasons for that ruling.
... ...
(b) Direction to file statement of errors complained of on (b) Direction to file statement of errors complained of on
appeal; instructions to the appellant and the trial court.--If appeal; instructions to the appellant and the trial court.--If
the judge entering the order giving rise to the notice of appeal the judge entering the order giving rise to the notice of appeal
(judge) desires clarification of the errors complained of on (judge) desires clarification of the errors complained of on
appeal, the judge may enter an order directing the appellant to appeal, the judge may enter an order directing the appellant to
file of record in the trial court and serve on the judge a concise file of record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal (Statement). statement of the errors complained of on appeal (Statement).
(1) Filing and service.--Appellant shall file of record the (1) Filing and service.--Appellant shall file of record the
Statement and concurrently shall serve the judge. Filing of Statement and concurrently shall serve the judge. Filing of
record and service on the judge shall be in person or by mail record and service on the judge shall be in person or by mail
as provided in Pa.R.A.P. 121(a) and shall be complete on as provided in Pa.R.A.P. 121(a) and shall be complete on
mailing if appellant obtains a United States Postal Service mailing if appellant obtains a United States Postal Service
Form 3817, Certificate of Mailing, or other similar United Form 3817, Certificate of Mailing, or other similar United
States Postal Service form from which the date of deposit States Postal Service form from which the date of deposit
can be verified, in compliance with the requirements set can be verified, in compliance with the requirements set
forth in Pa.R.A.P. 1112(c). Service on parties shall be forth in Pa.R.A.P. 1112(c). Service on parties shall be
concurrent with filing and shall be by any means of service concurrent with filing and shall be by any means of service
specified under Pa.R.A.P. 121(c). specified under Pa.R.A.P. 121(c).
(2) Time for filing and service.--The judge shall allow the (2) Time for filing and service.--The judge shall allow the
appellant at least 21 days from the date of the orders entry appellant at least 21 days from the date of the orders entry
on the docket for the filing and service of the Statement. on the docket for the filing and service of the Statement.
Upon application of the appellant and for good cause shown, Upon application of the appellant and for good cause shown,
the judge may enlarge the time period initially specified the judge may enlarge the time period initially specified
or permit an amended or supplemental Statement to be or permit an amended or supplemental Statement to be
filed. In extraordinary circumstances, the judge may allow filed. In extraordinary circumstances, the judge may allow
for the filing of a Statement or amended or supplemental for the filing of a Statement or amended or supplemental
Statement nunc pro tunc. Statement nunc pro tunc.
(3) Contents of order.--The judges order directing the filing (3) Contents of order.--The judges order directing the filing
and service of a Statement shall specify: and service of a Statement shall specify:
(i) the number of days after the date of entry of the (i) the number of days after the date of entry of the
judges order within which the appellant must file and judges order within which the appellant must file and
serve the Statement; serve the Statement;
(ii) that the Statement shall be filed of record; (ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge (iii) that the Statement shall be served on the judge
pursuant to paragraph (b)(1); pursuant to paragraph (b)(1);
(iv) that any issue not properly included in the Statement (iv) that any issue not properly included in the Statement
timely filed and served pursuant to subdivision (b) shall timely filed and served pursuant to subdivision (b) shall
be deemed waived. be deemed waived.
(4) Requirements; waiver. (4) Requirements; waiver.
(i) The Statement shall set forth only those rulings or (i) The Statement shall set forth only those rulings or
errors that the appellant intends to challenge. errors that the appellant intends to challenge.
(ii) The Statement shall concisely identify each ruling (ii) The Statement shall concisely identify each ruling
or error that the appellant intends to challenge with or error that the appellant intends to challenge with
sufficient detail to identify all pertinent issues for sufficient detail to identify all pertinent issues for
the judge. The judge shall not require the citation to the judge. The judge shall not require the citation to
authorities; however, appellant may choose to include authorities; however, appellant may choose to include
pertinent authorities in the Statement. pertinent authorities in the Statement.
(iii) The judge shall not require appellant or appellee to (iii) The judge shall not require appellant or appellee to
file a brief, memorandum of law, or response as part of file a brief, memorandum of law, or response as part of
or in conjunction with the Statement. or in conjunction with the Statement.
(iv) The Statement should not be redundant or provide (iv) The Statement should not be redundant or provide
lengthy explanations as to any error. Where non- lengthy explanations as to any error. Where non-
redundant, non-frivolous issues are set forth in an redundant, non-frivolous issues are set forth in an
appropriately concise manner, the number of errors appropriately concise manner, the number of errors
raised will not alone be grounds for finding waiver. raised will not alone be grounds for finding waiver.
(v) Each error identified in the Statement will be (v) Each error identified in the Statement will be
deemed to include every subsidiary issue contained deemed to include every subsidiary issue contained
therein which was raised in the trial court; this provision therein which was raised in the trial court; this provision
does not in any way limit the obligation of a criminal does not in any way limit the obligation of a criminal
appellant to delineate clearly the scope of claimed appellant to delineate clearly the scope of claimed
constitutional errors on appeal. constitutional errors on appeal.
(vi) If the appellant in a civil case cannot readily discern (vi) If the appellant in a civil case cannot readily discern
the basis for the judges decision, the appellant shall the basis for the judges decision, the appellant shall
preface the Statement with an explanation as to why preface the Statement with an explanation as to why
the Statement has identified the errors in only general the Statement has identified the errors in only general
terms. In such a case, the generality of the Statement terms. In such a case, the generality of the Statement
will not be grounds for finding waiver. will not be grounds for finding waiver.
(vii) Issues not included in the Statement and/or (vii) Issues not included in the Statement and/or
not raised in accordance with the provisions of this not raised in accordance with the provisions of this
paragraph (b)(4) are waived. paragraph (b)(4) are waived.
Pa.R.A.P. 1925(a)&(b). Pa.R.A.P. 1925(a)&(b).
1. Direction to File Statement of Matters Complained of pursuant to 1. Direction to File Statement of Matters Complained of pursuant to
Pa.R.A.P. 1925(b) Pa.R.A.P. 1925(b)
The purpose of filing a statement of matters complained of on appeal The purpose of filing a statement of matters complained of on appeal
is to aid trial judges in identifying and focusing upon the disputed issues. is to aid trial judges in identifying and focusing upon the disputed issues.
Commonwealth v. Lord, 553 Pa. 415, 419, 719 A.2d 306, 308 (1998). Commonwealth v. Lord, 553 Pa. 415, 419, 719 A.2d 306, 308 (1998).
In a recent decision of the Pennsylvania Supreme Court, a full analysis of In a recent decision of the Pennsylvania Supreme Court, a full analysis of
the rule was provided: the rule was provided:
Rule 1925(b) sets out a simple bright-line rule, which obligates Rule 1925(b) sets out a simple bright-line rule, which obligates
an appellant to file and serve a Rule 1925(b) statement, when an appellant to file and serve a Rule 1925(b) statement, when
so ordered; any issues not raised in a Rule 1925(b) statement so ordered; any issues not raised in a Rule 1925(b) statement
will be deemed waived; the courts lack the authority to will be deemed waived; the courts lack the authority to
countenance deviations from the Rules terms; the Rules countenance deviations from the Rules terms; the Rules
provisions are not subject to ad hoc exceptions or selective provisions are not subject to ad hoc exceptions or selective
enforcement; appellants and their counsel are responsible for enforcement; appellants and their counsel are responsible for
complying with the Rules requirements; Rule 1925 violations complying with the Rules requirements; Rule 1925 violations
may be raised by the appellate court sua sponte, and the Rule may be raised by the appellate court sua sponte, and the Rule
applies notwithstanding an appellees request not to enforce applies notwithstanding an appellees request not to enforce
it; and, if Rule 1925 is not clear as to what is required of an it; and, if Rule 1925 is not clear as to what is required of an
appellant, on-the-record actions taken by the appellant aimed appellant, on-the-record actions taken by the appellant aimed
at compliance may satisfy the Rule. We yet again repeat at compliance may satisfy the Rule. We yet again repeat
the principle first stated in Lord that must be applied here: the principle first stated in Lord that must be applied here:
[I]n order to preserve their claims for appellate review, [a] [I]n order to preserve their claims for appellate review, [a]
ppellants must comply whenever the trial court orders them to ppellants must comply whenever the trial court orders them to
file a Statement of Matters Complained of on Appeal pursuant file a Statement of Matters Complained of on Appeal pursuant
to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b) to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived. statement will be deemed waived.
Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484, 494 (2011). Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484, 494 (2011).
When the trail court orders an appellant to file a concise statement of matters When the trail court orders an appellant to file a concise statement of matters
complained of on appeal, appellant must comply. When the trial court enters a Rule complained of on appeal, appellant must comply. When the trial court enters a Rule
1925(b) order, the clerk of courts is required to provide copies of the order for each 1925(b) order, the clerk of courts is required to provide copies of the order for each
party and their attorney. Commonwealth v. Hess, 570 Pa. 610, 615, 810 A.2d 1249, party and their attorney. Commonwealth v. Hess, 570 Pa. 610, 615, 810 A.2d 1249,
1252 (2002). However, it is the appellants responsibility to properly file the statement 1252 (2002). However, it is the appellants responsibility to properly file the statement
and include those issues which the appellant wishes to preserve for appellate review. and include those issues which the appellant wishes to preserve for appellate review.
Commonwealth v. Mattison, 82 A.3d 386, 393 (2013). Commonwealth v. Mattison, 82 A.3d 386, 393 (2013).
2. Waiver of Issues 2. Waiver of Issues
Initially, there can be no waiver inquiry regarding issues preserved for Initially, there can be no waiver inquiry regarding issues preserved for
appellate review if the trial court does not order a Rule 1925(b) statement: appellate review if the trial court does not order a Rule 1925(b) statement:
Because the trial court did not order the filing of a Rule 1925(b) Because the trial court did not order the filing of a Rule 1925(b)
statement, we will not conduct a waiver inquiry pursuant to statement, we will not conduct a waiver inquiry pursuant to
Pa.R.A.P. 1925(b)(4). The requirements of Rule 1925(b) are not Pa.R.A.P. 1925(b)(4). The requirements of Rule 1925(b) are not
invoked in cases where there is no trial court order directing an invoked in cases where there is no trial court order directing an
appellant to file a Rule 1925(b) statement. See Commonwealth v. appellant to file a Rule 1925(b) statement. See Commonwealth v.
Thomas, 305 Pa.Super. 158, 451 A.2d 470, 472 n. 8 (1982). ([T]he Thomas, 305 Pa.Super. 158, 451 A.2d 470, 472 n. 8 (1982). ([T]he
lower court must order a concise statement of [errors] complained lower court must order a concise statement of [errors] complained
of on appeal and appellant must fail to comply with such directive of on appeal and appellant must fail to comply with such directive
before this Court can find waiver [.]); see also Commonwealth v. before this Court can find waiver [.]); see also Commonwealth v.
Hess, 570 Pa. 610, 810 A.2d 1249, 1252 (2002). Hess, 570 Pa. 610, 810 A.2d 1249, 1252 (2002).
Commonwealth v. Antidormi, 84 A.3d 736, 745 n. 7 (Pa.Super. 2014). Commonwealth v. Antidormi, 84 A.3d 736, 745 n. 7 (Pa.Super. 2014).
However, Pa.R.A.P. 1925(b)(4)(vii) provides that if a Rule 1925(b) statement However, Pa.R.A.P. 1925(b)(4)(vii) provides that if a Rule 1925(b) statement
is ordered, then either the defense or the Commonwealth, depending upon who is is ordered, then either the defense or the Commonwealth, depending upon who is
the appellant, will waive appellate review of issues if the issues are not raised in the the appellant, will waive appellate review of issues if the issues are not raised in the
statement. Commonwealth v. Elia, 83 A.3d 254, 263 (Pa. Super. 2013); Commonwealth statement. Commonwealth v. Elia, 83 A.3d 254, 263 (Pa. Super. 2013); Commonwealth
v. Mendez, 74 A.3d 256, 259-260 (Pa. Super. 2013). v. Mendez, 74 A.3d 256, 259-260 (Pa. Super. 2013).
(a) Exceptions to Strict Waiver Rule (a) Exceptions to Strict Waiver Rule
Good faith effort to file an adequate statement under particular Good faith effort to file an adequate statement under particular
circumstances avoids waiver. Commonwealth v. Moran, 823 A.2d circumstances avoids waiver. Commonwealth v. Moran, 823 A.2d
923, 926 (Pa. Super. 2003). But in Commonwealth v. Otero, 860 923, 926 (Pa. Super. 2003). But in Commonwealth v. Otero, 860
A.2d 1052 (Pa. Super. 2004), appeal denied, 584 Pa. 706, 885 A.2d A.2d 1052 (Pa. Super. 2004), appeal denied, 584 Pa. 706, 885 A.2d
41 (2005), the court did not find the tardy action of the defense to 41 (2005), the court did not find the tardy action of the defense to
constitute a good faith effort to cure an insufficient statement. constitute a good faith effort to cure an insufficient statement.
See Greater Erie Industrial Development Corp. v. Presque Isle See Greater Erie Industrial Development Corp. v. Presque Isle
Downs, Inc., 88 A.3d 222 (Pa. Super. 2014) regarding caveats to Downs, Inc., 88 A.3d 222 (Pa. Super. 2014) regarding caveats to
waiver. waiver.
Issues will not be waived for failure to file a statement of matters Issues will not be waived for failure to file a statement of matters
complained of where the appellant was not properly served with complained of where the appellant was not properly served with
order directing the appellant to file the statement. Commonwealth order directing the appellant to file the statement. Commonwealth
v. Hess, 570 Pa. 610, 618619, 810 A.2d 1249, 12541255 (2002). v. Hess, 570 Pa. 610, 618619, 810 A.2d 1249, 12541255 (2002).
But in Commonwealth v. Douglas, 835 A.2d 742 (Pa. Super. 2003), But in Commonwealth v. Douglas, 835 A.2d 742 (Pa. Super. 2003),
the Superior Court pointed out that a mere bald allegation that a the Superior Court pointed out that a mere bald allegation that a
party did not receive the Rule 1925 order is not sufficient; there party did not receive the Rule 1925 order is not sufficient; there
must be evidence presented to the trial court which substantiates must be evidence presented to the trial court which substantiates
the allegation. 835 A.2d at 745. the allegation. 835 A.2d at 745.
(b) Remand in Lieu of Waiver (b) Remand in Lieu of Waiver
In the event that the Commonwealth or the defense fail to timely file In the event that the Commonwealth or the defense fail to timely file
statements pursuant to Pa.R.A.P. 1925(b), the new amendments to the rule statements pursuant to Pa.R.A.P. 1925(b), the new amendments to the rule
permit the remedy that a remand should be ordered by the Appellate Court permit the remedy that a remand should be ordered by the Appellate Court
to allow for the filing of such statement nunc pro tunc. Pa.R.A.P. 1925(c)(3) to allow for the filing of such statement nunc pro tunc. Pa.R.A.P. 1925(c)(3)
allows for a remand if the appellant in a criminal case was ordered to file a allows for a remand if the appellant in a criminal case was ordered to file a
statement and did not do so. statement and did not do so.
. . . . . .
(c) Remand. (c) Remand.
(1) An appellate court may remand in either a civil or (1) An appellate court may remand in either a civil or
criminal case for a determination as to whether a criminal case for a determination as to whether a
Statement had been filed and/or served or timely filed Statement had been filed and/or served or timely filed
and/or served. and/or served.
(2) . . . (2) . . .
(3) If an appellant in a criminal case was ordered to file (3) If an appellant in a criminal case was ordered to file
a Statement and failed to do so, such that the appellate a Statement and failed to do so, such that the appellate
court is convinced that counsel has been per se court is convinced that counsel has been per se
ineffective, the appellate court shall remand for the filing ineffective, the appellate court shall remand for the filing
of a Statement nunc pro tunc and for the preparation and of a Statement nunc pro tunc and for the preparation and
filing of an opinion by the judge. filing of an opinion by the judge.
(4) In a criminal case, counsel may file of record and (4) In a criminal case, counsel may file of record and
serve on the judge a statement of intent to file an Anders/ serve on the judge a statement of intent to file an Anders/
McClendon brief in lieu of filing a Statement. If, upon McClendon brief in lieu of filing a Statement. If, upon
review of the Anders/McClendon brief, the appellate review of the Anders/McClendon brief, the appellate
court believes that there are arguably meritorious issues court believes that there are arguably meritorious issues
for review, those issues will not be waived; instead, the for review, those issues will not be waived; instead, the
appellate court may remand for the filing of a Statement, a appellate court may remand for the filing of a Statement, a
supplemental opinion pursuant to Rule 1925(a), or both. supplemental opinion pursuant to Rule 1925(a), or both.
Upon remand, the trial court may, but is not required to, Upon remand, the trial court may, but is not required to,
replace appellants counsel.11 replace appellants counsel.11
Therefore, if counsel in a criminal case fails to file the Rule 1925(b) Therefore, if counsel in a criminal case fails to file the Rule 1925(b)
statement, it will be deemed to be clear ineffectiveness, and instead of having statement, it will be deemed to be clear ineffectiveness, and instead of having
appeal rights restored in a post-conviction proceeding, the rule provides an appeal rights restored in a post-conviction proceeding, the rule provides an
effective way to provide the defendant with direct appeal rights by restoring the effective way to provide the defendant with direct appeal rights by restoring the
opportunity to file the statement nunc pro tunc. opportunity to file the statement nunc pro tunc.
No remand is necessary if the statement is filed late but the trial court No remand is necessary if the statement is filed late but the trial court
addresses the issues in any event. Effective appellate review is possible because addresses the issues in any event. Effective appellate review is possible because
the appellate court does not have to treat the late filing as waiver, and the trial the appellate court does not have to treat the late filing as waiver, and the trial
court considered the issues. court considered the issues.
B. Opinion or Designation of Place in Record of Reasons pursuant to Pa.R.A.P. B. Opinion or Designation of Place in Record of Reasons pursuant to Pa.R.A.P.
1925(a) 1925(a)
(a) Opinion in support of order. (a) Opinion in support of order.
(1) General rule.--Except as otherwise prescribed by this (1) General rule.--Except as otherwise prescribed by this
rule, upon receipt of the notice of appeal, the judge who rule, upon receipt of the notice of appeal, the judge who
entered the order giving rise to the notice of appeal, if the entered the order giving rise to the notice of appeal, if the
reasons for the order do not already appear of record, reasons for the order do not already appear of record,
shall forthwith file of record at least a brief opinion of the shall forthwith file of record at least a brief opinion of the
reasons for the order, or for the rulings or other errors reasons for the order, or for the rulings or other errors
complained of, or shall specify in writing the place in the complained of, or shall specify in writing the place in the
record where such reasons may be found. record where such reasons may be found.
If the case appealed involves a ruling issued by a judge If the case appealed involves a ruling issued by a judge
who was not the judge entering the order giving rise to who was not the judge entering the order giving rise to
the notice of appeal, the judge entering the order giving the notice of appeal, the judge entering the order giving
rise to the notice of appeal may request that the judge rise to the notice of appeal may request that the judge
who made the earlier ruling provide an opinion to be filed who made the earlier ruling provide an opinion to be filed
in accordance with the standards above to explain the in accordance with the standards above to explain the
reasons for that ruling.12 reasons for that ruling.12
11 Pa.R.a.P. 1925(C). 11 Pa.R.a.P. 1925(C).
12 Pa.R.a.P. 1925(a). 12 Pa.R.a.P. 1925(a).
The purpose of the rule is two-fold. First, it gives the appellate court a reasoned The purpose of the rule is two-fold. First, it gives the appellate court a reasoned
basis for the trial courts disposition of the challenged orders. Second, it requires the basis for the trial courts disposition of the challenged orders. Second, it requires the
judge to thoroughly consider his decision regarding the post-trial motions, in order to judge to thoroughly consider his decision regarding the post-trial motions, in order to
correct any problems that occurred at the trial level. This prevents unnecessary appeals. correct any problems that occurred at the trial level. This prevents unnecessary appeals.
Commonwealth v. Pate, 617 A.2d 754, 758759 (Pa. Super. 1992), appeal denied, 535 Commonwealth v. Pate, 617 A.2d 754, 758759 (Pa. Super. 1992), appeal denied, 535
Pa. 656, 634 A.2d 219 (1993). Pa. 656, 634 A.2d 219 (1993).
Generally, a trial judge may not simply ... decline to address an issue in the Rule Generally, a trial judge may not simply ... decline to address an issue in the Rule
1925(a) opinion because the chief purpose of the rule is to give the appellate court a 1925(a) opinion because the chief purpose of the rule is to give the appellate court a
reasoned basis for the trial courts disposition of the challenged orders and to enable reasoned basis for the trial courts disposition of the challenged orders and to enable
the appellate court to conduct effective and meaningful review. The remedy for non- the appellate court to conduct effective and meaningful review. The remedy for non-
compliance with the rule is a remand to the trial judge. Commonwealth v. Wood, 637 compliance with the rule is a remand to the trial judge. Commonwealth v. Wood, 637
A.2d 1335, 1342 (Pa. Super. 1994).13 A.2d 1335, 1342 (Pa. Super. 1994).13
As the Superior Court said in Commonwealth v. McBride, 957 A.2d 752 (Pa. As the Superior Court said in Commonwealth v. McBride, 957 A.2d 752 (Pa.
Super. 2008): Super. 2008):
In order to conduct a thorough and proper review on appeal, an In order to conduct a thorough and proper review on appeal, an
opinion explaining the reasoning behind the trial courts decisions opinion explaining the reasoning behind the trial courts decisions
is advantageous. is advantageous.
The absence of a trial court opinion poses a substantial The absence of a trial court opinion poses a substantial
impediment to meaningful and effective appellate review. impediment to meaningful and effective appellate review.
Rule 1925 is intended to aid trial judges in identifying and Rule 1925 is intended to aid trial judges in identifying and
focusing upon those issues that the parties plan to raise on focusing upon those issues that the parties plan to raise on
appeal. Rule 1925 is thus a crucial component of appellate appeal. Rule 1925 is thus a crucial component of appellate
process. process.
Commonwealth v. Butler, 571 Pa. 441, 812 A.2d 631, 636 (2002), Commonwealth v. Butler, 571 Pa. 441, 812 A.2d 631, 636 (2002),
citing Commonwealth v. Lord, 553 Pa. 415, 419, 719 A.2d 306, citing Commonwealth v. Lord, 553 Pa. 415, 419, 719 A.2d 306,
308 (1998). 308 (1998).
McBride, 957 A.2d at 758. McBride, 957 A.2d at 758.
Absent a trial court opinion, or in the face of an inadequate opinion, the proper Absent a trial court opinion, or in the face of an inadequate opinion, the proper
remedy is for the appellate court to remand for preparation of a Rule 1925(a) opinion. remedy is for the appellate court to remand for preparation of a Rule 1925(a) opinion.
Commonwealth v. Hood, 872 A.2d 175, 178 (Pa. Super. 2005), appeal denied, 585 Pa. Commonwealth v. Hood, 872 A.2d 175, 178 (Pa. Super. 2005), appeal denied, 585 Pa.
695, 889 A.2d 88 (2005). However, if the record from the proceedings in the trial court 695, 889 A.2d 88 (2005). However, if the record from the proceedings in the trial court
adequately appraises the appellate court of the trial courts reasoning in relation to the adequately appraises the appellate court of the trial courts reasoning in relation to the
issues raised in the appeal, the appellate court may decline to delay the case further by issues raised in the appeal, the appellate court may decline to delay the case further by
remanding for the preparation of a 1925(a) opinion, and proceed to review the merits remanding for the preparation of a 1925(a) opinion, and proceed to review the merits
13 See also Commonwealth v. Atwood, 547 A.2d 1257, 1260-1261 (Pa. Super. 1988), appeal denied, 521 Pa. 616, 557 A.2d 720 (1989): 13 See also Commonwealth v. Atwood, 547 A.2d 1257, 1260-1261 (Pa. Super. 1988), appeal denied, 521 Pa. 616, 557 A.2d 720 (1989):
To ask this Court to do the exhaustive review of that record [of an extensive trial] with no assistance from the trial To ask this Court to do the exhaustive review of that record [of an extensive trial] with no assistance from the trial
judge who sat throughout the proceeding, makes a mockery of appellate review. Our system of appellate review judge who sat throughout the proceeding, makes a mockery of appellate review. Our system of appellate review
provides an effective expeditious means for fair examination of the issues and resolution of them. It depends, however, provides an effective expeditious means for fair examination of the issues and resolution of them. It depends, however,
on counsel and the trial court adhering to the Rules of Appellate Procedure if the system is not to be paralyzed. on counsel and the trial court adhering to the Rules of Appellate Procedure if the system is not to be paralyzed.
of the appellants claims. Id.; Commonwealth v. Griffin, 785 A.2d 501, 504 (Pa. Super. of the appellants claims. Id.; Commonwealth v. Griffin, 785 A.2d 501, 504 (Pa. Super.
2001). 2001).
10.4 TRANSMISSION OF THE RECORD 10.4 TRANSMISSION OF THE RECORD
A. Duty of the Trial Court: Pa.R.A.P. 1931(b) A. Duty of the Trial Court: Pa.R.A.P. 1931(b)
Pennsylvania Rule of Appellate Procedure 1931(b) provides: Pennsylvania Rule of Appellate Procedure 1931(b) provides:
After a notice of appeal has been filed the judge who entered After a notice of appeal has been filed the judge who entered
the order appealed from shall comply with Rule 1925 (opinion the order appealed from shall comply with Rule 1925 (opinion
in support of order), shall cause the official court reporter to in support of order), shall cause the official court reporter to
comply with Rule 1922 (transcription of notes of testimony) or comply with Rule 1922 (transcription of notes of testimony) or
shall otherwise settle a statement of the evidence or proceedings shall otherwise settle a statement of the evidence or proceedings
as prescribed by this chapter, and shall take any other action as prescribed by this chapter, and shall take any other action
necessary to enable the clerk to assemble and transmit the necessary to enable the clerk to assemble and transmit the
record as prescribed by this rule.14 record as prescribed by this rule.14
While it is the appellants duty to order the transcripts necessary for an appeal,15 it While it is the appellants duty to order the transcripts necessary for an appeal,15 it
is the duty of the trial court to transmit the record to the appellate court. Commonwealth is the duty of the trial court to transmit the record to the appellate court. Commonwealth
v. Williams, 552 Pa. 451, 458, 715 A.2d 1101, 1104 (1998). Pa.R.A.P. 1931(c). However, v. Williams, 552 Pa. 451, 458, 715 A.2d 1101, 1104 (1998). Pa.R.A.P. 1931(c). However,
it is the responsibility of the appellant to ensure that the certified record is complete and it is the responsibility of the appellant to ensure that the certified record is complete and
transmitted to the appellate court. Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. transmitted to the appellate court. Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super.
2006), appeal denied, 591 Pa.663, 916 A.2d 632 (2007). 2006), appeal denied, 591 Pa.663, 916 A.2d 632 (2007).
It is well established that the appellate courts may only consider facts which It is well established that the appellate courts may only consider facts which
have been duly certified in the record on appeal from the trial court. Commonwealth v. have been duly certified in the record on appeal from the trial court. Commonwealth v.
Johns, 812 A.2d 1260, 1261 (Pa. Super. 2002). Failure to ensure that the certified record Johns, 812 A.2d 1260, 1261 (Pa. Super. 2002). Failure to ensure that the certified record
contains the materials necessary for appellate review constitutes waiver of the issue. contains the materials necessary for appellate review constitutes waiver of the issue.
Commonwealth v. Preston, 904 A.2d at 7. An item does not become part of the certified Commonwealth v. Preston, 904 A.2d at 7. An item does not become part of the certified
record merely by copying it and submitting it as part of the reproduced record. Id., at 6. record merely by copying it and submitting it as part of the reproduced record. Id., at 6.
In Commonwealth v. Proetto, 771 A.2d 823, 834 (Pa. Super. 2001), affd, In Commonwealth v. Proetto, 771 A.2d 823, 834 (Pa. Super. 2001), affd,
575 Pa. 511, 837 A.2d 1163 (2003), the defendant was convicted of criminal 575 Pa. 511, 837 A.2d 1163 (2003), the defendant was convicted of criminal
solicitation, obscene and other sexual materials, and corruption of minors, solicitation, obscene and other sexual materials, and corruption of minors,
due to his communications with a 15-year-old girl over the internet. The due to his communications with a 15-year-old girl over the internet. The
appellant did not include the trial exhibits in the certified record, and appellant did not include the trial exhibits in the certified record, and
therefore the Superior Court deemed his issue of sufficiency of the evidence therefore the Superior Court deemed his issue of sufficiency of the evidence
waived. 771 A.2d at 834. waived. 771 A.2d at 834.
In circumstances where the evidence or other materials necessary for appellate In circumstances where the evidence or other materials necessary for appellate
review are missing from the certified record, but it is undisputed that they were properly review are missing from the certified record, but it is undisputed that they were properly
before the trial court, the appellate courts have, on a case by case basis, made decisions before the trial court, the appellate courts have, on a case by case basis, made decisions
14 Pa.R.a.P. 1931(b). 14 Pa.R.a.P. 1931(b).
15 See Pa.R.a.P. 1911(a). 15 See Pa.R.a.P. 1911(a).
to review the claims on the merits despite the deficiency in the certified record. See, e.g., to review the claims on the merits despite the deficiency in the certified record. See, e.g.,
Commonwealth v. Pries, 861 A.2d 951, 952 n.2 (Pa. Super. 2004), appeal denied, 584 Pa. Commonwealth v. Pries, 861 A.2d 951, 952 n.2 (Pa. Super. 2004), appeal denied, 584 Pa.
693, 882 A.2d 478 (2005) (document appeared in reproduced record and counsel for 693, 882 A.2d 478 (2005) (document appeared in reproduced record and counsel for
both the prosecution and the defendant agreed that the document had been submitted both the prosecution and the defendant agreed that the document had been submitted
to the trial court); Commonwealth v. Johns, 812 A.2d 1260, 1262 (Pa. Super. 2002) to the trial court); Commonwealth v. Johns, 812 A.2d 1260, 1262 (Pa. Super. 2002)
(motion appeared in docket entries but not certified record). (motion appeared in docket entries but not certified record).
10.5 STANDARD AND SCOPE OF REVIEW ON APPEAL 10.5 STANDARD AND SCOPE OF REVIEW ON APPEAL
A. Appeals from Suppression Decisions A. Appeals from Suppression Decisions
1. Denial of a Suppression Motion 1. Denial of a Suppression Motion
The appellate courts standard of review in addressing a challenge to a The appellate courts standard of review in addressing a challenge to a
trial courts denial of a suppression motion is well settled: trial courts denial of a suppression motion is well settled:
An appellate courts standard of review in addressing a An appellate courts standard of review in addressing a
challenge to a trial courts denial of a suppression motion challenge to a trial courts denial of a suppression motion
is limited to determining whether the factual findings are is limited to determining whether the factual findings are
supported by the record and whether the legal conclusions supported by the record and whether the legal conclusions
drawn from those facts are correct. [Because] the prosecution drawn from those facts are correct. [Because] the prosecution
prevailed in the suppression court, we may consider only prevailed in the suppression court, we may consider only
the evidence of the prosecution and so much of the evidence the evidence of the prosecution and so much of the evidence
for the defense as remains uncontradicted when read in the for the defense as remains uncontradicted when read in the
context of the record as a whole. Where the record supports context of the record as a whole. Where the record supports
the factual findings of the trial court, we are bound by those the factual findings of the trial court, we are bound by those
facts and may reverse only if the legal conclusions drawn facts and may reverse only if the legal conclusions drawn
therefrom are in error. therefrom are in error.
Commonwealth v. Smith, 85 A.3d 530, 534 (Pa. Super. 2014), quoting Commonwealth v. Smith, 85 A.3d 530, 534 (Pa. Super. 2014), quoting
Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations omitted); Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations omitted);
see also Commonwealth v. Lagenella, --- Pa. ---, 83 A.3d 94, 98 (2013). see also Commonwealth v. Lagenella, --- Pa. ---, 83 A.3d 94, 98 (2013).
In a case where the Superior Court has reversed a trial courts denial of In a case where the Superior Court has reversed a trial courts denial of
a suppression motion, the Pennsylvania Supreme Courts standard of review in a suppression motion, the Pennsylvania Supreme Courts standard of review in
addressing the Commonwealths subsequent appeal is limited to determining addressing the Commonwealths subsequent appeal is limited to determining
whether the trial courts factual findings are supported by the record and whether whether the trial courts factual findings are supported by the record and whether
the legal conclusions drawn from those facts are correct. Commonwealth the legal conclusions drawn from those facts are correct. Commonwealth
v. Smith, --- Pa. ---, 77 A.3d 562, 568 (2013). Because the Commonwealth v. Smith, --- Pa. ---, 77 A.3d 562, 568 (2013). Because the Commonwealth
prevailed in the suppression court, the Supreme Court will consider only the prevailed in the suppression court, the Supreme Court will consider only the
Commonwealths evidence and the evidence presented by the defendant that Commonwealths evidence and the evidence presented by the defendant that
remains uncontradicted when read in the context of the record as a whole. Id. remains uncontradicted when read in the context of the record as a whole. Id.
Where the record supports the factual findings of the trial court, the Supreme Where the record supports the factual findings of the trial court, the Supreme
Court will be bound by those facts and may reverse only if the legal conclusions Court will be bound by those facts and may reverse only if the legal conclusions
drawn from them are in error. Id. drawn from them are in error. Id.
2. Grant of a Suppression Motion 2. Grant of a Suppression Motion
When the Commonwealth appeals the grant of a suppression motion, When the Commonwealth appeals the grant of a suppression motion,
the appellate court is required to determine whether the record supports the the appellate court is required to determine whether the record supports the
suppression courts factual findings and whether the inferences and legal suppression courts factual findings and whether the inferences and legal
conclusions drawn by the suppression court from those findings are appropriate. conclusions drawn by the suppression court from those findings are appropriate.
In re O.J., 958 A.2d 561, 564 (Pa. Super. 2008)(en banc), appeal denied, 605 Pa. In re O.J., 958 A.2d 561, 564 (Pa. Super. 2008)(en banc), appeal denied, 605 Pa.
688, 989 A.2d 918 (2010). 688, 989 A.2d 918 (2010).
Where the defendant prevailed in the suppression court, the Superior Where the defendant prevailed in the suppression court, the Superior
Court may consider only the evidence of the defense and so much of the evidence Court may consider only the evidence of the defense and so much of the evidence
for the Commonwealth as remains uncontradicted when read in the context of for the Commonwealth as remains uncontradicted when read in the context of
the record as a whole. Where the record supports the factual findings of the the record as a whole. Where the record supports the factual findings of the
suppression court, the Superior Court is bound by those facts and may reverse suppression court, the Superior Court is bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error. In re C.O., 84 A.3d 726, only if the legal conclusions drawn therefrom are in error. In re C.O., 84 A.3d 726,
731 (Pa. Super. 2014). 731 (Pa. Super. 2014).
However, where the appeal of the determination of the However, where the appeal of the determination of the
suppression court turns on allegations of legal error, the suppression court turns on allegations of legal error, the
suppression courts conclusions of law are not binding on an suppression courts conclusions of law are not binding on an
appellate court, whose duty it is to determine if the suppression appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. court properly applied the law to the facts.
In re O.J., 958 A.2d at 564. In re O.J., 958 A.2d at 564.
B. Appeals from Judgment of Sentence B. Appeals from Judgment of Sentence
1. Challenge to the Sufficiency of the Evidence 1. Challenge to the Sufficiency of the Evidence
Pa.R.Crim.P. 606 addresses challenges to the sufficiency of the evidence: Pa.R.Crim.P. 606 addresses challenges to the sufficiency of the evidence:
Rule 606. Challenges to Sufficiency of Evidence Rule 606. Challenges to Sufficiency of Evidence
(A) A defendant may challenge the sufficiency of the evidence (A) A defendant may challenge the sufficiency of the evidence
to sustain a conviction of one or more of the offenses charged to sustain a conviction of one or more of the offenses charged
in one or more of the following ways: in one or more of the following ways:
(1) a motion for judgment of acquittal at the close of the (1) a motion for judgment of acquittal at the close of the
Commonwealths case-in-chief; Commonwealths case-in-chief;
(2) a motion for judgment of acquittal at the close of all the (2) a motion for judgment of acquittal at the close of all the
evidence; evidence;
(3) a motion for judgment of acquittal filed within 10 days after (3) a motion for judgment of acquittal filed within 10 days after
the jury has been discharged without agreeing upon a verdict; the jury has been discharged without agreeing upon a verdict;
(4) a motion for judgment of acquittal made orally immediately (4) a motion for judgment of acquittal made orally immediately
after verdict; after verdict;
(5) a motion for judgment of acquittal made orally before (5) a motion for judgment of acquittal made orally before
sentencing pursuant to Rule 704(B); sentencing pursuant to Rule 704(B);
(6) a motion for judgment of acquittal made after sentence is (6) a motion for judgment of acquittal made after sentence is
imposed pursuant to Rule 720(B); or imposed pursuant to Rule 720(B); or
(7) a challenge to the sufficiency of the evidence made on (7) a challenge to the sufficiency of the evidence made on
appeal. appeal.
(B) A motion for judgment of acquittal shall not constitute an (B) A motion for judgment of acquittal shall not constitute an
admission of any facts or inferences except for the purpose of admission of any facts or inferences except for the purpose of
deciding the motion. If the motion is made at the close of the deciding the motion. If the motion is made at the close of the
Commonwealths evidence and is not granted, the defendant Commonwealths evidence and is not granted, the defendant
may present evidence without having reserved the right to do may present evidence without having reserved the right to do
so, and the case shall otherwise proceed as if the motion had so, and the case shall otherwise proceed as if the motion had
not been made. not been made.
(C) If a defendant moves for judgment of acquittal at the close (C) If a defendant moves for judgment of acquittal at the close
of all the evidence, the court may reserve decision until after the of all the evidence, the court may reserve decision until after the
jury returns a guilty verdict or after the jury is discharged without jury returns a guilty verdict or after the jury is discharged without
agreeing upon a verdict.16 agreeing upon a verdict.16
The standard applied by the appellate court in reviewing a challenge to The standard applied by the appellate court in reviewing a challenge to
the sufficiency of the evidence is whether viewing all the evidence admitted at the sufficiency of the evidence is whether viewing all the evidence admitted at
trial, and all reasonable inferences drawn from the evidence, in the light most trial, and all reasonable inferences drawn from the evidence, in the light most
favorable to the Commonwealth as verdict winner, there is sufficient evidence favorable to the Commonwealth as verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond a reasonable to enable the fact-finder to find every element of the crime beyond a reasonable
doubt. Commonwealth v. Diamond, --- Pa. ---, 83 A.3d 119, 126 (2013). doubt. Commonwealth v. Diamond, --- Pa. ---, 83 A.3d 119, 126 (2013).
A number of additional standards also apply: A number of additional standards also apply:
the appellate court may not weigh the evidence and substitute its the appellate court may not weigh the evidence and substitute its
judgment for the fact-finder; judgment for the fact-finder;
the facts and circumstances established by the Commonwealth need the facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence; not preclude every possibility of innocence;
any doubts regarding a defendants guilt may be resolved by the any doubts regarding a defendants guilt may be resolved by the
fact-finder unless the evidence is so weak and inconclusive that as a fact-finder unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the combined matter of law no probability of fact may be drawn from the combined
circumstances; and circumstances; and
the Commonwealth may sustain its burden of proving every element the Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly circum- of the crime beyond a reasonable doubt by means of wholly circum-
stantial evidence. stantial evidence.
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001), appeal denied, Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001), appeal denied,
569 Pa. 716, 806 A.2d 858 (2002). 569 Pa. 716, 806 A.2d 858 (2002).
In making this determination, because the sufficiency is a question In making this determination, because the sufficiency is a question
of law, the standard of review is de novo and the scope of review is plenary. of law, the standard of review is de novo and the scope of review is plenary.
Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24, 37 (2011). The appellate Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24, 37 (2011). The appellate
court must evaluate the entire trial record and consider all the evidence received. court must evaluate the entire trial record and consider all the evidence received.
Commonwealth v. Markman, 591 Pa. 249, 270, 916 A.2d 586, 598 (2007). Commonwealth v. Markman, 591 Pa. 249, 270, 916 A.2d 586, 598 (2007).
Lastly, applying the above standards, it must be acknowledged that the Lastly, applying the above standards, it must be acknowledged that the
trier of fact while passing upon the credibility of witnesses and the weight of trier of fact while passing upon the credibility of witnesses and the weight of
the evidence produced, is free to believe all, part or none of the evidence. See the evidence produced, is free to believe all, part or none of the evidence. See
Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007), appeal denied, Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007), appeal denied,
593 Pa. 754, 932 A.2d 74 (2007). 593 Pa. 754, 932 A.2d 74 (2007).
2. Challenge to the Weight of the Evidence 2. Challenge to the Weight of the Evidence
Pa.R.Crim.P. 607 addresses a motion challenging the weight of the Pa.R.Crim.P. 607 addresses a motion challenging the weight of the
evidence: evidence:
Rule 607. Challenges to the Weight of the Evidence Rule 607. Challenges to the Weight of the Evidence
(A) A claim that the verdict was against the weight of the (A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion evidence shall be raised with the trial judge in a motion
for a new trial: for a new trial:
(1) orally, on the record, at any time before sentencing; (1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or (2) by written motion at any time before sentencing; or
(3) in a post-sentence motion. (3) in a post-sentence motion.
(B)(1) If the claim is raised before sentencing, the judge (B)(1) If the claim is raised before sentencing, the judge
shall decide the motion before imposing sentence, and shall decide the motion before imposing sentence, and
shall not extend the date for sentencing or otherwise shall not extend the date for sentencing or otherwise
delay the sentencing proceeding in order to dispose of delay the sentencing proceeding in order to dispose of
the motion. the motion.
(2) An appeal from a disposition pursuant to this (2) An appeal from a disposition pursuant to this
paragraph shall be governed by the timing requirements paragraph shall be governed by the timing requirements
of Rule 720(A)(2) or (3), whichever applies.17 of Rule 720(A)(2) or (3), whichever applies.17
An allegation by the defendant that the verdict is against the weight of An allegation by the defendant that the verdict is against the weight of
the evidence is addressed to the discretion of the trial court. Commonwealth the evidence is addressed to the discretion of the trial court. Commonwealth
v. Stokes, 78 A.3d 644, 650 (Pa. Super. 2013). A challenge to the weight of the v. Stokes, 78 A.3d 644, 650 (Pa. Super. 2013). A challenge to the weight of the
evidence, in contrast to a challenge to the sufficiency of the evidence, concedes evidence, in contrast to a challenge to the sufficiency of the evidence, concedes
that there is sufficient evidence to sustain the verdict. Commonwealth v. Lyons, that there is sufficient evidence to sustain the verdict. Commonwealth v. Lyons,
--- Pa. ---, 79 A.3d 1053, 1067 (2013). --- Pa. ---, 79 A.3d 1053, 1067 (2013).
As stated above, the remedy for a challenge to the weight of the evidence As stated above, the remedy for a challenge to the weight of the evidence
is a new trial. is a new trial.
A new trial should not be granted because of a mere conflict A new trial should not be granted because of a mere conflict
in the testimony or because the judge on the same facts in the testimony or because the judge on the same facts
would have arrived at a different conclusion. A trial judge would have arrived at a different conclusion. A trial judge
must do more than reassess the credibility of the witnesses must do more than reassess the credibility of the witnesses
and allege that he would not have assented to the verdict if and allege that he would not have assented to the verdict if
he were a juror. Trial judges, in reviewing a claim that the he were a juror. Trial judges, in reviewing a claim that the
verdict is against the weight of the evidence do not sit as verdict is against the weight of the evidence do not sit as
the thirteenth juror. Rather, the role of the trial judge is to the thirteenth juror. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts determine that notwithstanding all the facts, certain facts
are so clearly of greater weight that to ignore them or to are so clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny justice. give them equal weight with all the facts is to deny justice.
Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal denied, Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012), appeal denied,
--- Pa. ---, 69 A.3d 601 (2013), quoting Commonwealth v. Widmer, 560 Pa. 308, --- Pa. ---, 69 A.3d 601 (2013), quoting Commonwealth v. Widmer, 560 Pa. 308,
320, 744 A.2d 745, 752 (2000) (citations omitted). 320, 744 A.2d 745, 752 (2000) (citations omitted).
On appeal from the trial courts decision, the standard of the appellate court is: On appeal from the trial courts decision, the standard of the appellate court is:
Appellate review of a weight claim is a review of the Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence. whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear Because the trial judge has had the opportunity to hear
and see the evidence presented, an appellate court will and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial courts advanced by the trial judge when reviewing a trial courts
determination that the verdict is against the weight of the determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or evidence. One of the least assailable reasons for granting or
denying a new trial is the lower courts conviction that the denying a new trial is the lower courts conviction that the
verdict was or was not against the weight of the evidence verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of and that a new trial should be granted in the interest of
justice. justice.
Commonwealth v. Hitner, 910 A.2d 721, 733 (Pa. Super. 2006), appeal denied, Commonwealth v. Hitner, 910 A.2d 721, 733 (Pa. Super. 2006), appeal denied,
592 Pa. 772, 926 A.2d 441 (2007). 592 Pa. 772, 926 A.2d 441 (2007).
In order to preserve for appellate review a claim that the conviction was In order to preserve for appellate review a claim that the conviction was
against the weight of the evidence, the issue must be raised in a post-sentence against the weight of the evidence, the issue must be raised in a post-sentence
motion, by a written motion before sentencing, or orally prior to sentencing. motion, by a written motion before sentencing, or orally prior to sentencing.
Pa.R.Crim.P. 607; Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Pa.R.Crim.P. 607; Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011).
3. Challenge to the Jury Charge/Instructions 3. Challenge to the Jury Charge/Instructions
The Rules of Criminal Procedure provide that a specific objection must be The Rules of Criminal Procedure provide that a specific objection must be
made before the jury retires to deliberate in order for the appellant to preserve made before the jury retires to deliberate in order for the appellant to preserve
an issue for appellate review. an issue for appellate review.
Rule 647. Request for Instructions, Charge to the Rule 647. Request for Instructions, Charge to the
Jury, and Preliminary Instructions Jury, and Preliminary Instructions
... ...
(B) No portions of the charge nor omissions from the (B) No portions of the charge nor omissions from the
charge may be assigned as error, unless specific charge may be assigned as error, unless specific
objections are made thereto before the jury retires to objections are made thereto before the jury retires to
deliberate. All such objections shall be made beyond the deliberate. All such objections shall be made beyond the
hearing of the jury.18 hearing of the jury.18
Therefore, a defendant must object to a jury charge at trial, or else the challenge Therefore, a defendant must object to a jury charge at trial, or else the challenge
to the charge will be precluded on appeal. Commonwealth v. Miskovitch, 64 A.3d to the charge will be precluded on appeal. Commonwealth v. Miskovitch, 64 A.3d
672, 685 (Pa. Super. 2013), appeal denied, --- Pa. ---, 78 A.3d 1090 (2013). This way, 672, 685 (Pa. Super. 2013), appeal denied, --- Pa. ---, 78 A.3d 1090 (2013). This way,
the trial court is given an opportunity to correct any error or misrepresentation the trial court is given an opportunity to correct any error or misrepresentation
before the jury goes out to deliberate. before the jury goes out to deliberate.
In cases where an objection to a charge is properly preserved for review: In cases where an objection to a charge is properly preserved for review:
[A]ppellate review of a trial court charge must involve a [A]ppellate review of a trial court charge must involve a
consideration of the charge as a whole to determine whether it consideration of the charge as a whole to determine whether it
was fair and complete. The review does not focus upon whether was fair and complete. The review does not focus upon whether
certain magic words were included in the charge. Rather, it is the certain magic words were included in the charge. Rather, it is the
effect of the charge as a whole that is controlling. effect of the charge as a whole that is controlling.
Commonwealth v. Saunders, 529 Pa. 140, 144, 602 A.2d 816, 818 (1992) (cita- Commonwealth v. Saunders, 529 Pa. 140, 144, 602 A.2d 816, 818 (1992) (cita-
tions omitted). tions omitted).
In relation to a challenge to the trial courts refusal to give a specific jury In relation to a challenge to the trial courts refusal to give a specific jury
instruction, the scope and standard of review of the appellate court is as follows: instruction, the scope and standard of review of the appellate court is as follows:
[I]t is the function of [the appellate court] to determine wheth- [I]t is the function of [the appellate court] to determine wheth-
er the record supports the trial courts decision. In examining the er the record supports the trial courts decision. In examining the
propriety of the instructions a trial court presents to a jury, our propriety of the instructions a trial court presents to a jury, our
18 Pa.R.CRim.P. 647(b). 18 Pa.R.CRim.P. 647(b).
scope of review is to determine whether the trial court committed scope of review is to determine whether the trial court committed
a clear abuse of discretion or an error of law which controlled the a clear abuse of discretion or an error of law which controlled the
outcome of the case. A jury charge will be deemed erroneous only outcome of the case. A jury charge will be deemed erroneous only
if the charge as a whole is inadequate, not clear or has a tenden- if the charge as a whole is inadequate, not clear or has a tenden-
cy to mislead or confuse, rather than clarify, a material issue. A cy to mislead or confuse, rather than clarify, a material issue. A
charge is considered adequate unless the jury was palpably mis- charge is considered adequate unless the jury was palpably mis-
led by what the trial judge said or there is an omission which is led by what the trial judge said or there is an omission which is
tantamount to fundamental error. Consequently, the trial court tantamount to fundamental error. Consequently, the trial court
has wide discretion in fashioning jury instructions. The trial court has wide discretion in fashioning jury instructions. The trial court
is not required to give every charge that is requested by the par- is not required to give every charge that is requested by the par-
ties and its refusal to give a requested charge does not require ties and its refusal to give a requested charge does not require
reversal unless the Appellant was prejudiced by that refusal. reversal unless the Appellant was prejudiced by that refusal.
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013), quoting Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013), quoting
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006). Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006).
4. Challenge to the Discretionary Aspects of a Sentence 4. Challenge to the Discretionary Aspects of a Sentence
A challenge to the discretionary aspects of a sentence must be consid- A challenge to the discretionary aspects of a sentence must be consid-
ered a petition for permission to appeal, as the right to pursue such a claim is not ered a petition for permission to appeal, as the right to pursue such a claim is not
absolute. Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004), ap- absolute. Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004), ap-
peal denied, 580 Pa. 695, 860 A.2d 122 (2004) (citation omitted). When challeng- peal denied, 580 Pa. 695, 860 A.2d 122 (2004) (citation omitted). When challeng-
ing the discretionary aspects of the sentence imposed, an appellant must present ing the discretionary aspects of the sentence imposed, an appellant must present
a substantial question that the sentence is inappropriate under the sentencing a substantial question that the sentence is inappropriate under the sentencing
code. See Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). code. See Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).
Rule 2119 of the Pennsylvania Rules of Appellate Procedure provides the Rule 2119 of the Pennsylvania Rules of Appellate Procedure provides the
following, in pertinent part: following, in pertinent part:
(f) Discretionary aspects of sentence. An appellant (f) Discretionary aspects of sentence. An appellant
who challenges the discretionary aspects of a sentence who challenges the discretionary aspects of a sentence
in a criminal matter shall set forth in his brief a concise in a criminal matter shall set forth in his brief a concise
statement of reasons relied upon for allowance of appeal statement of reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence. with respect to the discretionary aspects of a sentence.
The statement shall immediately precede the argument The statement shall immediately precede the argument
on the merits with respect to the discretionary aspects of on the merits with respect to the discretionary aspects of
sentence. sentence.
Pa.R.A.P. 2119(f). Furthermore, the Judicial Code specifies: Pa.R.A.P. 2119(f). Furthermore, the Judicial Code specifies:
9781. Appellate review of sentence 9781. Appellate review of sentence
(a) Right to appeal.--The defendant or the (a) Right to appeal.--The defendant or the
Commonwealth may appeal as of right the legality of the Commonwealth may appeal as of right the legality of the
sentence. sentence.
(b) Allowance of appeal.--The defendant or the (b) Allowance of appeal.--The defendant or the
Commonwealth may file a petition for allowance of appeal Commonwealth may file a petition for allowance of appeal
of the discretionary aspects of a sentence for a felony of the discretionary aspects of a sentence for a felony
or a misdemeanor to the appellate court that has initial or a misdemeanor to the appellate court that has initial
jurisdiction for such appeals. Allowance of appeal may jurisdiction for such appeals. Allowance of appeal may
be granted at the discretion of the appellate court where be granted at the discretion of the appellate court where
it appears that there is a substantial question that the it appears that there is a substantial question that the
sentence imposed is not appropriate under this chapter. sentence imposed is not appropriate under this chapter.
Two requirements must be met before the Superior Court will review this Two requirements must be met before the Superior Court will review this
challenge on its merits. McAfee, 849 A.2d at 274. First, an appellant must set challenge on its merits. McAfee, 849 A.2d at 274. First, an appellant must set
forth in his brief a concise statement of the reasons relied upon for allowance forth in his brief a concise statement of the reasons relied upon for allowance
of appeal with respect to the discretionary aspects of a sentence. Id. Second, of appeal with respect to the discretionary aspects of a sentence. Id. Second,
the appellant must show that there is a substantial question that the sentence the appellant must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. Id. That is, the sentence imposed is not appropriate under the Sentencing Code. Id. That is, the sentence
violates either a specific provision of the sentencing scheme set forth in the Sen- violates either a specific provision of the sentencing scheme set forth in the Sen-
tencing Code or a particular fundamental norm underlying the sentencing pro- tencing Code or a particular fundamental norm underlying the sentencing pro-
cess. Tirado, 870 A.2d at 365. The Superior Court will examine an appellants cess. Tirado, 870 A.2d at 365. The Superior Court will examine an appellants
Rule 2119(f) statement to determine whether a substantial question exists. Our Rule 2119(f) statement to determine whether a substantial question exists. Our
inquiry must focus on the reasons for which the appeal is sought, in contrast to inquiry must focus on the reasons for which the appeal is sought, in contrast to
the facts underlying the appeal, which are necessary only to decide the appeal the facts underlying the appeal, which are necessary only to decide the appeal
on the merits. Id. (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. on the merits. Id. (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.
Super. 2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)) (em- Super. 2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)) (em-
phasis in original). phasis in original).
Prior to reaching the merits of a discretionary sentencing issue, the Prior to reaching the merits of a discretionary sentencing issue, the
appellate court conducts a four-part analysis. appellate court conducts a four-part analysis.
(1) Whether the appellant has filed a timely notice of appeal in accor- (1) Whether the appellant has filed a timely notice of appeal in accor-
dance with Pa.R.A.P. 902 and 903. dance with Pa.R.A.P. 902 and 903.
(2) Whether the issue on appeal was properly preserved at sentencing (2) Whether the issue on appeal was properly preserved at sentencing
or in a motion to reconsider and modify sentence in accordance or in a motion to reconsider and modify sentence in accordance
with Pa.R.Crim.P. 720(B)(1). with Pa.R.Crim.P. 720(B)(1).
(3) Whether the appellants brief adequately states a substantial (3) Whether the appellants brief adequately states a substantial
question or if it contains a fatal defect. In order to satisfy the re- question or if it contains a fatal defect. In order to satisfy the re-
quirements of 42 Pa.Cons.Stat.Ann. 9781(b), Pennsylvania Rule quirements of 42 Pa.Cons.Stat.Ann. 9781(b), Pennsylvania Rule
of Appellate Procedure 2119(f) mandates that an appellant chal- of Appellate Procedure 2119(f) mandates that an appellant chal-
lenging the discretionary aspects of his sentence set forth in his lenging the discretionary aspects of his sentence set forth in his
brief a concise statement of the reasons relied upon for allowance brief a concise statement of the reasons relied upon for allowance
of appeal, i.e., the reasons the sentence is inappropriate under the of appeal, i.e., the reasons the sentence is inappropriate under the
Sentencing Code. Sentencing Code.
(4) Whether there is a substantial question that the sentence appealed (4) Whether there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42 Pa.Cons. from is not appropriate under the Sentencing Code, 42 Pa.Cons.
Stat.Ann. 9781(b). Stat.Ann. 9781(b).
Commonwealth v. Levy, 83 A.3d 457, 467 (Pa. Super. 2013). Commonwealth v. Levy, 83 A.3d 457, 467 (Pa. Super. 2013).
Whether a particular challenge to a sentence amounts to a substantial Whether a particular challenge to a sentence amounts to a substantial
question is determined on a case-by-case basis. See Commonwealth v. question is determined on a case-by-case basis. See Commonwealth v.
Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011) (citation omitted). A substantial Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011) (citation omitted). A substantial
question exists only when the appellant advances a colorable argument that the question exists only when the appellant advances a colorable argument that the
sentencing judges actions were either: (1) inconsistent with a specific provision sentencing judges actions were either: (1) inconsistent with a specific provision
of the Sentencing Code; or (2) contrary to the fundamental norms which underlie of the Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process. Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. the sentencing process. Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super.
2012) (citations and internal quotation marks omitted). 2012) (citations and internal quotation marks omitted).
The standard of review of the discretionary aspects of a sentence has been The standard of review of the discretionary aspects of a sentence has been
well settled: well settled:
Sentencing is a matter vested in the sound discretion of the Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. An abuse of appeal absent a manifest abuse of discretion. An abuse of
discretion is more than just an error in judgment and, on discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will. partiality, prejudice, bias, or ill-will.
Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012). Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012).
Similarly, an appellant wishing to appeal the discretionary aspects of a Similarly, an appellant wishing to appeal the discretionary aspects of a
probation-revocation sentence has no absolute right to do so, but rather, must probation-revocation sentence has no absolute right to do so, but rather, must
petition this Court for permission to do so in her concise statement of reasons petition this Court for permission to do so in her concise statement of reasons
on the grounds that there is a substantial question that the sentence is inappro- on the grounds that there is a substantial question that the sentence is inappro-
priate under the Sentencing Code. Commonwealth v. Malovich, 903 A.2d 1247, priate under the Sentencing Code. Commonwealth v. Malovich, 903 A.2d 1247,
1250 (Pa. Super. 2006). Therefore, before the appellate court may consider the 1250 (Pa. Super. 2006). Therefore, before the appellate court may consider the
merits of the appeal, the appellate court must conduct the same four-part analy- merits of the appeal, the appellate court must conduct the same four-part analy-
sis. Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007). sis. Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
5. Challenge to the Legality of Sentence 5. Challenge to the Legality of Sentence
Questions relating to the legality of sentencing are not waivable, and may Questions relating to the legality of sentencing are not waivable, and may
be raised for the first time on appeal. Commonwealth v. Robinson, --- Pa. ---, 82 be raised for the first time on appeal. Commonwealth v. Robinson, --- Pa. ---, 82
A.3d 998, 1020 (2013). A.3d 998, 1020 (2013).
The classic instance of an illegal sentence is where the term imposed The classic instance of an illegal sentence is where the term imposed
exceeds the statutory maximum. Commonwealth v. Spruill, --- Pa. ---, 80 A.3d 453, exceeds the statutory maximum. Commonwealth v. Spruill, --- Pa. ---, 80 A.3d 453,
461 (2013). A claim that a sentence constitutes cruel and unusual punishment 461 (2013). A claim that a sentence constitutes cruel and unusual punishment
raises a question of legality of the sentence. Commonwealth v. Brown, 71 A.3d raises a question of legality of the sentence. Commonwealth v. Brown, 71 A.3d
1009, 1016 (Pa. Super. 2013), appeal denied, --- Pa. ---, 77 A.3d 635 (2013). 1009, 1016 (Pa. Super. 2013), appeal denied, --- Pa. ---, 77 A.3d 635 (2013).
The law in Pennsylvania makes it clear that an illegal sentence may be The law in Pennsylvania makes it clear that an illegal sentence may be
appealed as of right: appealed as of right:
9781. Appellate review of sentence 9781. Appellate review of sentence
(a) Right to appeal.-- The defendant or the (a) Right to appeal.-- The defendant or the
Commonwealth may appeal as of right the legality of the Commonwealth may appeal as of right the legality of the
sentence. sentence.
42 Pa.Cons.Stat.Ann. 9781(a). The standard and scope of review is well settled: 42 Pa.Cons.Stat.Ann. 9781(a). The standard and scope of review is well settled:
If no statutory authorization exists for a particular sentence, If no statutory authorization exists for a particular sentence,
that sentence is illegal and subject to correction. An illegal that sentence is illegal and subject to correction. An illegal
sentence must be vacated. In evaluating a trial courts sentence must be vacated. In evaluating a trial courts
application of a statute, our standard of review is plenary and application of a statute, our standard of review is plenary and
is limited to determining whether the trial court committed an is limited to determining whether the trial court committed an
error of law. error of law.
Commonwealth v. Stevenson, 850 A.2d 1268, 1271 (Pa. Super. 2004) (citations Commonwealth v. Stevenson, 850 A.2d 1268, 1271 (Pa. Super. 2004) (citations
omitted). omitted).
10.6 POST CONVICTION RELIEF ACT 10.6 POST CONVICTION RELIEF ACT
A. Petitions under the PCRA A. Petitions under the PCRA
Pennsylvania has adopted the Post Conviction Relief Act, 42 Pa.Cons.Stat.Ann. Pennsylvania has adopted the Post Conviction Relief Act, 42 Pa.Cons.Stat.Ann.
9541 et seq. By enacting the Post Conviction Relief Act, the Pennsylvania Legislature 9541 et seq. By enacting the Post Conviction Relief Act, the Pennsylvania Legislature
has prescribed the route that all collateral review of criminal convictions and sentences has prescribed the route that all collateral review of criminal convictions and sentences
must follow. Commonwealth v. Lesko, 609 Pa. 128, 156, 15 A.3d 345, 360-361 (2011). must follow. Commonwealth v. Lesko, 609 Pa. 128, 156, 15 A.3d 345, 360-361 (2011).
The types of claims deemed cognizable under the PCRA are not limitless. Id. To The types of claims deemed cognizable under the PCRA are not limitless. Id. To
prevail on a petition for post-conviction relief, a petitioner must plead and prove, by a prevail on a petition for post-conviction relief, a petitioner must plead and prove, by a
preponderance of the evidence, that his conviction or sentence resulted from one or preponderance of the evidence, that his conviction or sentence resulted from one or
more of the circumstances enumerated in 42 Pa.Cons.Stat.Ann. 9543(a)(2). more of the circumstances enumerated in 42 Pa.Cons.Stat.Ann. 9543(a)(2).
9543. Eligibility for relief 9543. Eligibility for relief
(a) General rule.--To be eligible for relief under this (a) General rule.--To be eligible for relief under this
subchapter, the petitioner must plead and prove by a subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following: preponderance of the evidence all of the following:
(1) That the petitioner has been convicted of a crime (1) That the petitioner has been convicted of a crime
under the laws of this Commonwealth and is at the time under the laws of this Commonwealth and is at the time
relief is granted: relief is granted:
(i) currently serving a sentence of imprisonment, (i) currently serving a sentence of imprisonment,
probation or parole for the crime; probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the (ii) awaiting execution of a sentence of death for the
crime; or crime; or
(iii) serving a sentence which must expire before the (iii) serving a sentence which must expire before the
person may commence serving the disputed sentence. person may commence serving the disputed sentence.
(2) That the conviction or sentence resulted from one or (2) That the conviction or sentence resulted from one or
more of the following: more of the following:
(i) A violation of the Constitution of this Commonwealth (i) A violation of the Constitution of this Commonwealth
or the Constitution or laws of the United States or the Constitution or laws of the United States
which, in the circumstances of the particular case, which, in the circumstances of the particular case,
so undermined the truth-determining process that no so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have reliable adjudication of guilt or innocence could have
taken place. taken place.
(ii) Ineffective assistance of counsel which, in the (ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication truth-determining process that no reliable adjudication
of guilt or innocence could have taken place. of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the (iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement circumstances make it likely that the inducement
caused the petitioner to plead guilty and the petitioner caused the petitioner to plead guilty and the petitioner
is innocent. is innocent.
(iv) The improper obstruction by government officials (iv) The improper obstruction by government officials
of the petitioners right of appeal where a meritorious of the petitioners right of appeal where a meritorious
appealable issue existed and was properly preserved appealable issue existed and was properly preserved
in the trial court. in the trial court.
(v) Deleted. (v) Deleted.
(vi) The unavailability at the time of trial of exculpatory (vi) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and evidence that has subsequently become available and
would have changed the outcome of the trial if it had would have changed the outcome of the trial if it had
been introduced. been introduced.
(vii) The imposition of a sentence greater than the (vii) The imposition of a sentence greater than the
lawful maximum. lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction. (viii) A proceeding in a tribunal without jurisdiction.
42 Pa.Cons.Stat.Ann. 9543. See Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 42 Pa.Cons.Stat.Ann. 9543. See Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super.
2013), appeal denied, --- Pa. ---, 74 A.3d 1030 (2013). The Pennsylvania Supreme Court 2013), appeal denied, --- Pa. ---, 74 A.3d 1030 (2013). The Pennsylvania Supreme Court
has construed the PCRA broadly to encompass all those types of claims that would have has construed the PCRA broadly to encompass all those types of claims that would have
been available for review under common law habeas corpus principles. Commonwealth been available for review under common law habeas corpus principles. Commonwealth
v. Lesko, 609 Pa. 128, 157, 15 A.3d 345, 361-362 (2011). v. Lesko, 609 Pa. 128, 157, 15 A.3d 345, 361-362 (2011).
If the underlying substantive claim is one that could potentially be remedied If the underlying substantive claim is one that could potentially be remedied
under the PCRA, then that claim is exclusive to the PCRA. Commonwealth v. Pagan, under the PCRA, then that claim is exclusive to the PCRA. Commonwealth v. Pagan,
864 A.2d 1231, 1233 (Pa. Super. 2004). However, where the PCRA does not encompass 864 A.2d 1231, 1233 (Pa. Super. 2004). However, where the PCRA does not encompass
a claim, other collateral procedures, for example, coram nobis, remain available. Pagan, a claim, other collateral procedures, for example, coram nobis, remain available. Pagan,
864 A.2d at 1233. 864 A.2d at 1233.
B. Jurisdictional Time Limitations B. Jurisdictional Time Limitations
In addition to detailing the types of claims that are cognizable under the Post In addition to detailing the types of claims that are cognizable under the Post
Conviction Relief Act, the PCRA further limits collateral review by utilizing jurisdictional Conviction Relief Act, the PCRA further limits collateral review by utilizing jurisdictional
time limitations. Commonwealth v. Lesko, 609 Pa. 128, 156, 15 A.3d 345, 361 (2011). time limitations. Commonwealth v. Lesko, 609 Pa. 128, 156, 15 A.3d 345, 361 (2011).
These limits provide that a PCRA petition must be filed within one year of the These limits provide that a PCRA petition must be filed within one year of the
date the judgment became final. date the judgment became final.
(b) Time for filing petition.-- (b) Time for filing petition.--
(43) Any petition under this subchapter, including a (43) Any petition under this subchapter, including a
second or subsequent petition, shall be filed within second or subsequent petition, shall be filed within
one year of the date the judgment becomes final . . . one year of the date the judgment becomes final . . .
Furthermore, any petition filed outside of the one-year jurisdictional time bar is Furthermore, any petition filed outside of the one-year jurisdictional time bar is
unreviewable unless it meets certain listed exceptions and is filed within sixty days of unreviewable unless it meets certain listed exceptions and is filed within sixty days of
the date the claim first could have been presented. 42 Pa.Cons.Stat.Ann. 9545(b)(1) the date the claim first could have been presented. 42 Pa.Cons.Stat.Ann. 9545(b)(1)
(i)-(iii) & (b)(2). (i)-(iii) & (b)(2).
C. Appeals from PCRA Orders C. Appeals from PCRA Orders
The standard of review regarding an order denying a petition under the Post The standard of review regarding an order denying a petition under the Post
Conviction Relief Act, 42 Pa.Cons.Stat.Ann. 9541 et seq., requires an inquiry into Conviction Relief Act, 42 Pa.Cons.Stat.Ann. 9541 et seq., requires an inquiry into
whether the record supports the PCRA courts determination and whether the court whether the record supports the PCRA courts determination and whether the court
correctly stated and applied the law. Commonwealth v. DuPont, 860 A.2d 525, 529 (Pa. correctly stated and applied the law. Commonwealth v. DuPont, 860 A.2d 525, 529 (Pa.
Super. 2004), appeal denied, 585 Pa. 695, 889 A.2d 87 (2005), cert. denied, 547 U.S. 1129, Super. 2004), appeal denied, 585 Pa. 695, 889 A.2d 87 (2005), cert. denied, 547 U.S. 1129,
126 S.Ct. 2029 (2006). The PCRA courts findings will not be disturbed unless those 126 S.Ct. 2029 (2006). The PCRA courts findings will not be disturbed unless those
findings are unsupported by the record. Id. findings are unsupported by the record. Id.
If the trial court dismisses the PCRA petition without a hearing, the appellate If the trial court dismisses the PCRA petition without a hearing, the appellate
court must examine each of the issues raised in the PCRA petition in light of the record court must examine each of the issues raised in the PCRA petition in light of the record
in order to determine whether the PCRA court erred in concluding that there were in order to determine whether the PCRA court erred in concluding that there were
no genuine issues of material fact and denying relief without an evidentiary hearing. no genuine issues of material fact and denying relief without an evidentiary hearing.
Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001).
In reviewing the denial of PCRA relief, the Pennsylvania Supreme Court will In reviewing the denial of PCRA relief, the Pennsylvania Supreme Court will
examine whether the PCRA courts determination is supported by the record and free of examine whether the PCRA courts determination is supported by the record and free of
legal error. To be entitled to PCRA relief, an appellant must establish, by a preponderance legal error. To be entitled to PCRA relief, an appellant must establish, by a preponderance
of the evidence, his conviction or sentence resulted from one or more of the enumerated of the evidence, his conviction or sentence resulted from one or more of the enumerated
errors in 42 Pa.Cons.Stat.Ann. 9543(a)(2), his claims have not been previously errors in 42 Pa.Cons.Stat.Ann. 9543(a)(2), his claims have not been previously
litigated or waived[,] and the failure to litigate the issue prior to or during trial, ... or on litigated or waived[,] and the failure to litigate the issue prior to or during trial, ... or on
direct appeal could not have been the result of any rational, strategic or tactical decision direct appeal could not have been the result of any rational, strategic or tactical decision
by counsel. Commonwealth v. Fears, --- Pa. ---, 86 A.3d 795, 803 (2014) (citations by counsel. Commonwealth v. Fears, --- Pa. ---, 86 A.3d 795, 803 (2014) (citations
omitted). omitted).
An issue is previously litigated if the highest appellate court in which the appellant An issue is previously litigated if the highest appellate court in which the appellant
could have had review as a matter of right has ruled on the merits of the issue. Id. An could have had review as a matter of right has ruled on the merits of the issue. Id. An
issue is waived if appellant could have raised it but failed to do so before trial, at trial, on issue is waived if appellant could have raised it but failed to do so before trial, at trial, on
appeal or in a prior state post-conviction proceeding. Id. appeal or in a prior state post-conviction proceeding. Id.
SEX OFFENDER SEX OFFENDER

REGISTRATION REGISTRATION
AND NOTIFICATION AND NOTIFICATION
Sex Offender Registration and Notification Sex Offender Registration and Notification
Chapter Eleven Table of Contents Chapter Eleven Table of Contents

11.2 SEX OFFENDER REGISTRATION AND NOTIFICATION ACT ...................... 4 11.2 SEX OFFENDER REGISTRATION AND NOTIFICATION ACT ...................... 4
A. Legislative History............................................................................................................. 4 A. Legislative History............................................................................................................. 4
B. Definitions ............................................................................................................................ 7 B. Definitions ............................................................................................................................ 7
C. Registration .......................................................................................................................12 C. Registration .......................................................................................................................12
D. Individuals Who Must Register with the Pennsylvania State Police..........13 D. Individuals Who Must Register with the Pennsylvania State Police..........13
1. Individuals convicted of a sexually violent offense .....................................13 1. Individuals convicted of a sexually violent offense .....................................13
2. Individuals under sentence for a sexually violent offense .......................14 2. Individuals under sentence for a sexually violent offense .......................14
3. Individuals under federal sentence for a sexually violent offense .......14 3. Individuals under federal sentence for a sexually violent offense .......14
4. Individuals who previously failed to register ................................................14 4. Individuals who previously failed to register ................................................14
5. Other states and foreign jurisdictions ..............................................................14 5. Other states and foreign jurisdictions ..............................................................14
6. Juvenile offenders ......................................................................................................15 6. Juvenile offenders ......................................................................................................15
E. Sexual Offenses and the Tier System .......................................................................17 E. Sexual Offenses and the Tier System .......................................................................17
Tier I ...................................................................................................................................17 Tier I ...................................................................................................................................17
Tier II ...................................................................................................................................18 Tier II ...................................................................................................................................18
Tier III .................................................................................................................................18 Tier III .................................................................................................................................18
F. Registration ........................................................................................................................19 F. Registration ........................................................................................................................19
1. Periods of Registration under SORNA ..............................................................19 1. Periods of Registration under SORNA ..............................................................19
2. Special Registration Periods for Out-of-State Offenders .........................20 2. Special Registration Periods for Out-of-State Offenders .........................20
3. Periodic In-Person Appearances .........................................................................20 3. Periodic In-Person Appearances .........................................................................20
4. Commencement of Registration ..........................................................................21 4. Commencement of Registration ..........................................................................21
5. Tolling ............................................................................................................................22 5. Tolling ............................................................................................................................22
6. Penalty ...........................................................................................................................22 6. Penalty ...........................................................................................................................22
7. Relevant Case Law ....................................................................................................23 7. Relevant Case Law ....................................................................................................23
G. Registration Procedures ..............................................................................................28 G. Registration Procedures ..............................................................................................28
1. When Offender Must Initially Register .............................................................28 1. When Offender Must Initially Register .............................................................28
(a) If sentenced prior to effective date of statute ...............................28 (a) If sentenced prior to effective date of statute ...............................28
(b) If sentenced on or after the effective date of statute .................30 (b) If sentenced on or after the effective date of statute .................30
(c) If convicted or adjudicated outside the Commonwealth ..........31 (c) If convicted or adjudicated outside the Commonwealth ..........31
(d) If incarcerated in a federal facility or (d) If incarcerated in a federal facility or
supervised by federal authorities ......................................................31 supervised by federal authorities ......................................................31
2. Information to be Provided ...................................................................................32 2. Information to be Provided ...................................................................................32
3. Notification of Changes ...........................................................................................33 3. Notification of Changes ...........................................................................................33
4. Enforcement ................................................................................................................34 4. Enforcement ................................................................................................................34

(a) In general ......................................................................................................34 (a) In general ......................................................................................................34
(b) When an individual cannot be located ............................................34 (b) When an individual cannot be located ............................................34
(c) Notice from another jurisdiction .......................................................34 (c) Notice from another jurisdiction .......................................................34
(d) If the individual refuses to provide information .........................34 (d) If the individual refuses to provide information .........................34
5. Court Notification and Classification Requirements ..................................34 5. Court Notification and Classification Requirements ..................................34
(a) Duty to inform ............................................................................................35 (a) Duty to inform ............................................................................................35
(b) Duty to order the information to be provided ..............................36 (b) Duty to order the information to be provided ..............................36
H. Assessments.......................................................................................................................37 H. Assessments.......................................................................................................................37
1. Order for assessment ...............................................................................................38 1. Order for assessment ...............................................................................................38
2. Factors to be considered in assessment ..........................................................38 2. Factors to be considered in assessment ..........................................................38
3. Release of information ............................................................................................39 3. Release of information ............................................................................................39
4. Submission of report by Board ............................................................................39 4. Submission of report by Board ............................................................................39
5. Summary of Offense .................................................................................................39 5. Summary of Offense .................................................................................................39
6. Hearing ..........................................................................................................................40 6. Hearing ..........................................................................................................................40
(a) Prehearing Procedure ..............................................................................40 (a) Prehearing Procedure ..............................................................................40
(b) Alternative Expert Assessment ...........................................................40 (b) Alternative Expert Assessment ...........................................................40
(c) Burden of Proof ...........................................................................................40 (c) Burden of Proof ...........................................................................................40
(d) Courts Determination .............................................................................40 (d) Courts Determination .............................................................................40
(e) SVP Determination Following Sentencing ......................................41 (e) SVP Determination Following Sentencing ......................................41
7. Presentence Investigation ......................................................................................41 7. Presentence Investigation ......................................................................................41
8. Parole Assessment ....................................................................................................41 8. Parole Assessment ....................................................................................................41
9. Delinquent Children .................................................................................................41 9. Delinquent Children .................................................................................................41
10. Appellate Review .....................................................................................................42 10. Appellate Review .....................................................................................................42
I. Verification by Sexual Offenders and the Pa. State Police ..............................43 I. Verification by Sexual Offenders and the Pa. State Police ..............................43
1. Periodic Verification .................................................................................................43 1. Periodic Verification .................................................................................................43
2. Deadline .........................................................................................................................43 2. Deadline .........................................................................................................................43
J. Victim Notification ..........................................................................................................43 J. Victim Notification ..........................................................................................................43
1. Duty to Inform the Victim of SVP ........................................................................43 1. Duty to Inform the Victim of SVP ........................................................................43
2. Victim Notification of Other Sexual Offenders ..............................................44 2. Victim Notification of Other Sexual Offenders ..............................................44
K. Other (Community) Notification ...........................................................................44 K. Other (Community) Notification ...........................................................................44
1. Residence .....................................................................................................................44 1. Residence .....................................................................................................................44
2. Contents of Notice .....................................................................................................44 2. Contents of Notice .....................................................................................................44
3. Release of Notice ........................................................................................................45 3. Release of Notice ........................................................................................................45
4. General Public .............................................................................................................45 4. General Public .............................................................................................................45
5. Interstate Transfers ..................................................................................................46 5. Interstate Transfers ..................................................................................................46
6. Exemption from Notification Requirement ...................................................46 6. Exemption from Notification Requirement ...................................................46
L. Public Internet Website ................................................................................................46 L. Public Internet Website ................................................................................................46

M. Immunity for Good Faith Conduct ............................................................................49 M. Immunity for Good Faith Conduct ............................................................................49
N. Counseling of Sexually Violent Predators .............................................................50 N. Counseling of Sexually Violent Predators .............................................................50
1. General Rule ................................................................................................................50 1. General Rule ................................................................................................................50
2. Designation in another jurisdiction ...................................................................50 2. Designation in another jurisdiction ...................................................................50
3 Penalty ............................................................................................................................50 3 Penalty ............................................................................................................................50
O. Photographs and Fingerprinting ..............................................................................50 O. Photographs and Fingerprinting ..............................................................................50
P. Failure to Comply Statutes...........................................................................................50 P. Failure to Comply Statutes...........................................................................................50
1. Failure to comply with registration requirements ......................................50 1. Failure to comply with registration requirements ......................................50
2. Failure by Transient ...................................................................................................51 2. Failure by Transient ...................................................................................................51
3 Failure to comply with Counseling ......................................................................51 3 Failure to comply with Counseling ......................................................................51
11.3 DNA DATA and TESTING ...................................................................................51 11.3 DNA DATA and TESTING ...................................................................................51
A. COMBINED DNA INDEX SYSTEM - CODIS ............................................................51 A. COMBINED DNA INDEX SYSTEM - CODIS ............................................................51
B. The Pennsylvania DNA Detection of Sexual and Violent Offenders Act ...52 B. The Pennsylvania DNA Detection of Sexual and Violent Offenders Act ...52
1. Responsibilities of the Pa. State Police .............................................................52 1. Responsibilities of the Pa. State Police .............................................................52
C. When DNA Sample Required ......................................................................................53 C. When DNA Sample Required ......................................................................................53
1. DNA sample is required ...........................................................................53 1. DNA sample is required ...........................................................................53
2. Mandatory submission ............................................................................................53 2. Mandatory submission ............................................................................................53
D. Expungement ...................................................................................................................54 D. Expungement ...................................................................................................................54
E. Prohibition on Disclosure ............................................................................................54 E. Prohibition on Disclosure ............................................................................................54
F. Criminal Penalties ...........................................................................................................55 F. Criminal Penalties ...........................................................................................................55
Addendum 1: Notice of Registration Requirements Tier I Offenders.................................56 Addendum 1: Notice of Registration Requirements Tier I Offenders.................................56
Addendum 2: Notice of Registration Requirements Tier II Offenders ...............................59 Addendum 2: Notice of Registration Requirements Tier II Offenders ...............................59
Addendum 3: Notice of Registration Requirements Tier III Offenders..............................62 Addendum 3: Notice of Registration Requirements Tier III Offenders..............................62
Addendum 4: Notice of Registration Requirements Sexually Violent Predators ...........65 Addendum 4: Notice of Registration Requirements Sexually Violent Predators ...........65
Addendum 5: Pennsylvania State Police Registration Details ...............................................68 Addendum 5: Pennsylvania State Police Registration Details ...............................................68
Chapter Eleven Chapter Eleven

This chapter focuses on statutes that are essentially designed to protect the This chapter focuses on statutes that are essentially designed to protect the
public from sexual offenders. public from sexual offenders.
Section 11.2 details Pennsylvanias Sex Offender Registration and Notification Section 11.2 details Pennsylvanias Sex Offender Registration and Notification
Act, 42 Pa.Cons.Stat.Ann. 9799.10 et seq., (SORNA). Recent appellate court decisions Act, 42 Pa.Cons.Stat.Ann. 9799.10 et seq., (SORNA). Recent appellate court decisions
regarding the new law, SORNA, and also some which address the prior versions of Megans regarding the new law, SORNA, and also some which address the prior versions of Megans
Law, are included in Section 11.2(F)(7), Relevant Case Law. Additionally, appellate Law, are included in Section 11.2(F)(7), Relevant Case Law. Additionally, appellate
review of a trial courts determination in relation to a classification of Sexually Violent review of a trial courts determination in relation to a classification of Sexually Violent
Predator is included in Section 11.2(H)(10), Appellate Review. Predator is included in Section 11.2(H)(10), Appellate Review.
Section 11.3, outlines the use of DNA samples in various databases, focusing on Section 11.3, outlines the use of DNA samples in various databases, focusing on
Pennsylvanias DNA data testing statute and CODIS. Pennsylvanias DNA data testing statute and CODIS.
There are five addendums. The first four are the registration requirements There are five addendums. The first four are the registration requirements
which the trial court must provide to a defendant/SVP at the time of sentencing. which the trial court must provide to a defendant/SVP at the time of sentencing.
These addendums were prepared by the Family Violence & Sexual Assault Unit of These addendums were prepared by the Family Violence & Sexual Assault Unit of
the Philadelphia District Attorneys Office. Addendum 5 includes the registration the Philadelphia District Attorneys Office. Addendum 5 includes the registration
requirements as prepared by the Pennsylvania State Police, which are available on the requirements as prepared by the Pennsylvania State Police, which are available on the
PSPs website under the Megans Law section. PSPs website under the Megans Law section.
11.2 SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA) 11.2 SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA)
A. Legislative History A. Legislative History
In response to the 1994 murder of seven-year-old Megan Kanka by a neighbor In response to the 1994 murder of seven-year-old Megan Kanka by a neighbor
who had been twice convicted of sex offenses against young girls, the state of New Jersey who had been twice convicted of sex offenses against young girls, the state of New Jersey
passed Megans Law, requiring registration and community notification of sex offenders. passed Megans Law, requiring registration and community notification of sex offenders.
New Jerseys first version of Megans Law, the Registration and Community Notification New Jerseys first version of Megans Law, the Registration and Community Notification
Laws, is still codified in N.J.S.A. 2C:7-1 et seq.1 On July 25, 1995, the New Jersey Supreme Laws, is still codified in N.J.S.A. 2C:7-1 et seq.1 On July 25, 1995, the New Jersey Supreme
Court upheld the constitutionality of the statute. Court upheld the constitutionality of the statute.
1 The findings and declarations of the New Jersey legislature were: 1 The findings and declarations of the New Jersey legislature were:
a. The danger of recidivism posed by sex offenders and offenders who commit other predatory acts against children, and the a. The danger of recidivism posed by sex offenders and offenders who commit other predatory acts against children, and the
dangers posed by persons who prey on others as a result of mental illness, require a system of registration that will permit law dangers posed by persons who prey on others as a result of mental illness, require a system of registration that will permit law
enforcement officials to identify and alert the public when necessary for the public safety. enforcement officials to identify and alert the public when necessary for the public safety.
b. A system of registration of sex offenders and offenders who commit other predatory acts against children will provide law b. A system of registration of sex offenders and offenders who commit other predatory acts against children will provide law
enforcement with additional information critical to preventing and promptly resolving incidents involving sexual abuse and enforcement with additional information critical to preventing and promptly resolving incidents involving sexual abuse and
missing persons. missing persons.
N.J.S.A. 2C:7-1. N.J.S.A. 2C:7-1.
Following New Jerseys lead, Pennsylvania enacted its first version of Megans Following New Jerseys lead, Pennsylvania enacted its first version of Megans
Law in October 1995, which became effective in April 1996, and established procedural Law in October 1995, which became effective in April 1996, and established procedural
measures for the registration of sex offenders with law enforcement agencies. Since its measures for the registration of sex offenders with law enforcement agencies. Since its
enactment, there have been several constitutional challenges to various provisions in enactment, there have been several constitutional challenges to various provisions in
the statute, prompting multiple reenactments and extensive case law. the statute, prompting multiple reenactments and extensive case law.
In 1999, the Pennsylvania Supreme Court, in Commonwealth v. Williams, 557 In 1999, the Pennsylvania Supreme Court, in Commonwealth v. Williams, 557
Pa. 285, 733 A.2d 593 (1999) (Williams I) struck down provisions of Megans Law I Pa. 285, 733 A.2d 593 (1999) (Williams I) struck down provisions of Megans Law I
relating to the classification of an offender as a sexually violent predator. Under the relating to the classification of an offender as a sexually violent predator. Under the
statute, once there was a conviction for a predicate offense, there was a presumption statute, once there was a conviction for a predicate offense, there was a presumption
that the offender was a sexually violent predator. It was the burden of the individual that the offender was a sexually violent predator. It was the burden of the individual
convicted to rebut that presumption by clear and convincing evidence. Given the convicted to rebut that presumption by clear and convincing evidence. Given the
heightened requirements and sanctions that attached to a sexually violent predator, heightened requirements and sanctions that attached to a sexually violent predator,
the Court in Williams I found that the process violated an offenders procedural due the Court in Williams I found that the process violated an offenders procedural due
process rights and therefore struck down the provisions. In response, the Legislature process rights and therefore struck down the provisions. In response, the Legislature
adopted, in 2000, Megans Law II. In Megans Law II, the Commonwealth now had the adopted, in 2000, Megans Law II. In Megans Law II, the Commonwealth now had the
burden of proving by clear and convincing evidence that the defendant was a sexually burden of proving by clear and convincing evidence that the defendant was a sexually
violent predator. Under the new law, instead of being subject to an automatic increased violent predator. Under the new law, instead of being subject to an automatic increased
maximum term of imprisonment, sexually violent predators were required to undergo maximum term of imprisonment, sexually violent predators were required to undergo
lifetime registration, notification and counseling procedures. That same year, an lifetime registration, notification and counseling procedures. That same year, an
amendment to the act added Sexual Exploitation of Children as a registerable offense. amendment to the act added Sexual Exploitation of Children as a registerable offense.
The Pennsylvania Supreme Court revisited the case in Commonwealth v. The Pennsylvania Supreme Court revisited the case in Commonwealth v.
Williams, 574 Pa. 487, 832 A.2d 962 (2003) (Williams II) and held that in absence Williams, 574 Pa. 487, 832 A.2d 962 (2003) (Williams II) and held that in absence
of competent and credible evidence undermining the relevant legislative findings, the of competent and credible evidence undermining the relevant legislative findings, the
provisions for registration, notification, and counseling provisions for sexually violent provisions for registration, notification, and counseling provisions for sexually violent
predators in Megans Law II were non-punitive, regulatory measures supporting a predators in Megans Law II were non-punitive, regulatory measures supporting a
legitimate governmental purpose. Id., 574 Pa. at 528, 832 A.2d at 986. However, Williams legitimate governmental purpose. Id., 574 Pa. at 528, 832 A.2d at 986. However, Williams
II further held that the penalty provisions for failing to register or verify residence were II further held that the penalty provisions for failing to register or verify residence were
unconstitutionally punitive but severable. The court severed those provisions from the unconstitutionally punitive but severable. The court severed those provisions from the
remainder of the statute and remanded the case back to the trial court for consideration remainder of the statute and remanded the case back to the trial court for consideration
of the appellants remaining arguments, i.e., that Megans Law should be held void for of the appellants remaining arguments, i.e., that Megans Law should be held void for
vagueness; violated substantive due process guarantees; violated the separation of vagueness; violated substantive due process guarantees; violated the separation of
powers doctrine; and that it contained more than one subject in contravention of Article powers doctrine; and that it contained more than one subject in contravention of Article
3, 3 of the Pennsylvania Constitution. 3, 3 of the Pennsylvania Constitution.
The trial court rejected appellants constitutional arguments without holding The trial court rejected appellants constitutional arguments without holding
a hearing. Upon appeal, in remanding the case back to the trial court and ordering a a hearing. Upon appeal, in remanding the case back to the trial court and ordering a
hearing, the Superior Court held that the trial court should have held an evidentiary hearing, the Superior Court held that the trial court should have held an evidentiary
hearing and make an independent determination on appellants constitutional hearing and make an independent determination on appellants constitutional
challenges. Commonwealth v. Williams, 877 A.2d 471, 478 (Pa. Super. 2005), appeal challenges. Commonwealth v. Williams, 877 A.2d 471, 478 (Pa. Super. 2005), appeal
Also in 2003, the Supreme Court reviewed the provisions of Megans Law II in Also in 2003, the Supreme Court reviewed the provisions of Megans Law II in
Commonwealth v. Maldonado, 576 Pa. 101, 838 A.2d 710 (2003), where the Court held Commonwealth v. Maldonado, 576 Pa. 101, 838 A.2d 710 (2003), where the Court held
that due process did not require proof beyond a reasonable doubt for the court to find that due process did not require proof beyond a reasonable doubt for the court to find
an offender as a sexually violent predator. an offender as a sexually violent predator.
In the meantime, Megans Law II went through several statutory changes in 2004 In the meantime, Megans Law II went through several statutory changes in 2004
and became known as Megans Law III. The legislature deleted the penalty section of and became known as Megans Law III. The legislature deleted the penalty section of
Megans Law II and added a criminal charge to the crimes code for failing to comply with Megans Law II and added a criminal charge to the crimes code for failing to comply with
registration and verification procedures. It also added new definitions and registerable registration and verification procedures. It also added new definitions and registerable
crimes, added procedures and classifications for out-of-state or court martialed or crimes, added procedures and classifications for out-of-state or court martialed or
juvenile offenders, exemptions from certain notifications, and an annual performance juvenile offenders, exemptions from certain notifications, and an annual performance
audit. Most notably, the new law added a section allowing registration information of audit. Most notably, the new law added a section allowing registration information of
all sexual offenders to be made available on the Internet. It also amended the statutes all sexual offenders to be made available on the Internet. It also amended the statutes
relating to verification of residence, community or other notifications, immunity for relating to verification of residence, community or other notifications, immunity for
good faith conduct, and duties of the Pennsylvania State Police. good faith conduct, and duties of the Pennsylvania State Police.
In 2005, the legislature declared that young children were highly vulnerable In 2005, the legislature declared that young children were highly vulnerable
when walking to and from elementary school and that the Commonwealth had a when walking to and from elementary school and that the Commonwealth had a
compelling state interest in protecting them from sexually violent predators. New compelling state interest in protecting them from sexually violent predators. New
sections were added to Megans Law III imposing limitations on residence for sexually sections were added to Megans Law III imposing limitations on residence for sexually
violent predators and creating a new offense for sexually violent predators who violated violent predators and creating a new offense for sexually violent predators who violated
the restrictions. In the meantime, the Pennsylvania judiciary addressed a number of the restrictions. In the meantime, the Pennsylvania judiciary addressed a number of
constitutional challenges to the statute, repeatedly finding that Megans Law III passed constitutional challenges to the statute, repeatedly finding that Megans Law III passed
constitutional muster. constitutional muster.
Commonwealth v. Killinger, 585 Pa. 92, 888 A.2d 592 (2005): holding that Commonwealth v. Killinger, 585 Pa. 92, 888 A.2d 592 (2005): holding that
sanctions for non-SVPs required to register for ten years did not violate Due sanctions for non-SVPs required to register for ten years did not violate Due
Process protections. Process protections.
Commonwealth v. Wilson, 589 Pa. 559, 910 A.2d 10 (2006): holding that Commonwealth v. Wilson, 589 Pa. 559, 910 A.2d 10 (2006): holding that
sanctions for non-SVPs required to register for lifetime were not punitive but sanctions for non-SVPs required to register for lifetime were not punitive but
merely a consequence of a conviction for the underlying offense, as held in merely a consequence of a conviction for the underlying offense, as held in
Killinger. Killinger.
Commonwealth v. Mullins, 905 A.2d 1009 (Pa Super 2006), appeal denied, Commonwealth v. Mullins, 905 A.2d 1009 (Pa Super 2006), appeal denied,
594 Pa. 712, 937 A.2d 444 (2007), and Commonwealth v. Leddington, 908 594 Pa. 712, 937 A.2d 444 (2007), and Commonwealth v. Leddington, 908
A.2d 328 (Pa. Super. 2006), appeal denied, 596 Pa. 704, 940 A.2d 363 (2007): A.2d 328 (Pa. Super. 2006), appeal denied, 596 Pa. 704, 940 A.2d 363 (2007):
both courts faced challenges to the constitutionality of Megans Law II due to both courts faced challenges to the constitutionality of Megans Law II due to
the lack of judicial review of a SVP determination, and held that the appellants the lack of judicial review of a SVP determination, and held that the appellants
had failed to meet the high evidentiary standard to overcome a presumption had failed to meet the high evidentiary standard to overcome a presumption
of a statutes constitutionality. The court in Leddington recognized that of a statutes constitutionality. The court in Leddington recognized that
to overcome the presumption of constitutionality, a SVP diagnosed with to overcome the presumption of constitutionality, a SVP diagnosed with
pedophilia must present evidence that pedophilia can be fully cured. 908 pedophilia must present evidence that pedophilia can be fully cured. 908
A.2d at 332. Thus, the Superior Court held that [w]ithout establishing such A.2d at 332. Thus, the Superior Court held that [w]ithout establishing such
a cure is available, the need for judicial review of the determination that a a cure is available, the need for judicial review of the determination that a
defendant is an SVP is clearly obviated. Id. defendant is an SVP is clearly obviated. Id.
Commonwealth v. Lee, 594 Pa. 266, 935 A.2d 865 (2007): the Court held Commonwealth v. Lee, 594 Pa. 266, 935 A.2d 865 (2007): the Court held
that lifetime registration, notification, and counseling obligations of SVPs that lifetime registration, notification, and counseling obligations of SVPs
were not punitive and, therefore, did not violate due process, the double were not punitive and, therefore, did not violate due process, the double
jeopardy clause, or the prohibition against ex post facto laws. Challenges jeopardy clause, or the prohibition against ex post facto laws. Challenges
to the constitutionality of a statute require the clearest proof and the to the constitutionality of a statute require the clearest proof and the
conflicting expert testimony presented as to the accuracy of SVP did not meet conflicting expert testimony presented as to the accuracy of SVP did not meet
that standard to overcome a presumption of constitutionality. that standard to overcome a presumption of constitutionality.
Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399 (2008): the Supreme Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399 (2008): the Supreme
Court reviewed the question of whether a plea of nolo contendere to Court reviewed the question of whether a plea of nolo contendere to
certain criminal charges can be declared invalid where the sentencing certain criminal charges can be declared invalid where the sentencing
court either fails to inform, or misinforms, the criminal defendant of the court either fails to inform, or misinforms, the criminal defendant of the
registration consequences of the plea under Megans Law II. The Supreme registration consequences of the plea under Megans Law II. The Supreme
Court rejected Leidigs argument that registration under Megans Law Court rejected Leidigs argument that registration under Megans Law
II was a direct, rather than collateral, consequence of his conviction. II was a direct, rather than collateral, consequence of his conviction.
Id. at 220, 956 A.2d at 404. In so doing, the Supreme Court reiterated its prior Id. at 220, 956 A.2d at 404. In so doing, the Supreme Court reiterated its prior
holdings in Williams II and Commonwealth v. Lee, 594 Pa. 266, 935 A.2d 865 holdings in Williams II and Commonwealth v. Lee, 594 Pa. 266, 935 A.2d 865
(2007), wherein the Supreme Court held that the registration requirements (2007), wherein the Supreme Court held that the registration requirements
of Megans Law and Megans Law II were remedial, not penal, and designed to of Megans Law and Megans Law II were remedial, not penal, and designed to
protect the public, not to further punish the offender. protect the public, not to further punish the offender.
On December 20, 2011, the Governor signed the Adam Walsh Bill into law, On December 20, 2011, the Governor signed the Adam Walsh Bill into law,
bringing Pennsylvania into compliance with the federal Adam Walsh Child Protection bringing Pennsylvania into compliance with the federal Adam Walsh Child Protection
and Safety Act of 2006. The law expands the list of applicable sexually violent offenses and Safety Act of 2006. The law expands the list of applicable sexually violent offenses
and groups offenders into multiple classifications, or Tiers, depending on the severity of and groups offenders into multiple classifications, or Tiers, depending on the severity of
the offense, and extended lifetime registration requirements to juvenile offenders. Also, the offense, and extended lifetime registration requirements to juvenile offenders. Also,
Pennsylvania is now required to meet strict standards for posting offenders information Pennsylvania is now required to meet strict standards for posting offenders information
on a national sex offender registry. Pennsylvanias SORNA, the Sex Offender Registration on a national sex offender registry. Pennsylvanias SORNA, the Sex Offender Registration
and Notification Act, is codified in 42 Pa. Cons. Stat. Ann. 9799.10, et seq. and Notification Act, is codified in 42 Pa. Cons. Stat. Ann. 9799.10, et seq.
SORNA superseded all previous versions of Megans Law legislation. It mandated that SORNA superseded all previous versions of Megans Law legislation. It mandated that
the initial registration of sexual offenders was now to occur at the time of sentencing the initial registration of sexual offenders was now to occur at the time of sentencing
upon conviction of an enumerated offense. The sentencing hearing typically follows upon conviction of an enumerated offense. The sentencing hearing typically follows
the completion of an offender assessment by the Sexual Offender Assessment Board the completion of an offender assessment by the Sexual Offender Assessment Board
and any pre-sentence investigation report ordered by the trial court. and any pre-sentence investigation report ordered by the trial court.
SORNA also broadened the scope of offenses under which offenders could be SORNA also broadened the scope of offenses under which offenders could be
determined to be a sexually violent predator. The existing registration periods were determined to be a sexually violent predator. The existing registration periods were
changed to 15-year, 25-year, and lifetime registration periods depending upon the changed to 15-year, 25-year, and lifetime registration periods depending upon the
offenses. offenses.
B. Definitions B. Definitions
42 Pa.Cons.stat.ann. 9799.12. Definitions 42 Pa.Cons.stat.ann. 9799.12. Definitions
The following words and phrases when used in this subchapter The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless shall have the meanings given to them in this section unless
the context clearly indicates otherwise: the context clearly indicates otherwise:
Approved registration site. A site in this Commonwealth Approved registration site. A site in this Commonwealth
approved by the Pennsylvania State Police at which individuals approved by the Pennsylvania State Police at which individuals
subject to this subchapter may comply with this subchapter. subject to this subchapter may comply with this subchapter.
Board. The State Sexual Offenders Assessment Board. Board. The State Sexual Offenders Assessment Board.
Common interest community. Includes a cooperative, a Common interest community. Includes a cooperative, a
condominium and a planned community where an individual by condominium and a planned community where an individual by
virtue of an ownership interest in any portion of real estate is or virtue of an ownership interest in any portion of real estate is or
may become obligated by covenant, easement or agreement may become obligated by covenant, easement or agreement
imposed upon the owners interest to pay any amount for real imposed upon the owners interest to pay any amount for real
property taxes, insurance, maintenance, repair, improvement, property taxes, insurance, maintenance, repair, improvement,
management, administration or regulation of any part of the management, administration or regulation of any part of the
real estate other than the portion or interest owned solely by real estate other than the portion or interest owned solely by
the individual. the individual.
Convicted. Includes conviction by entry of plea of guilty or Convicted. Includes conviction by entry of plea of guilty or
nolo contendere, conviction after trial or court martial and a nolo contendere, conviction after trial or court martial and a
finding of not guilty due to insanity or of guilty but mentally ill. finding of not guilty due to insanity or of guilty but mentally ill.
Employed. Includes a vocation or employment that is full Employed. Includes a vocation or employment that is full
time or part time for a period of time exceeding four days time or part time for a period of time exceeding four days
during a seven-day period or for an aggregate period of time during a seven-day period or for an aggregate period of time
exceeding 14 days during any calendar year, whether self- exceeding 14 days during any calendar year, whether self-
employed, volunteered, financially compensated, pursuant to employed, volunteered, financially compensated, pursuant to
a contract or for the purpose of governmental or educational a contract or for the purpose of governmental or educational
benefit. benefit.
Foreign country. Includes Canada, the United Kingdom, Foreign country. Includes Canada, the United Kingdom,
Australia, New Zealand and a foreign country where the Australia, New Zealand and a foreign country where the
United States Department of State in the Country Reports on United States Department of State in the Country Reports on
Human Rights Practices has concluded that an independent Human Rights Practices has concluded that an independent
judiciary enforced the right to a fair trial in that country during judiciary enforced the right to a fair trial in that country during
the calendar year in which the individuals conviction occurred. the calendar year in which the individuals conviction occurred.
IAFIS. The Integrated Automated Fingerprint Identification IAFIS. The Integrated Automated Fingerprint Identification
System. System.
Integrated Automated Fingerprint Identification System. Integrated Automated Fingerprint Identification System.
The national fingerprint and criminal history system maintained The national fingerprint and criminal history system maintained
by the Federal Bureau of Investigation providing automated by the Federal Bureau of Investigation providing automated
fingerprint search capabilities, latent searching capability, fingerprint search capabilities, latent searching capability,
electronic image storage and electronic exchange of fingerprints electronic image storage and electronic exchange of fingerprints
and responses. and responses.
Jurisdiction. A state, the District of Columbia, the Jurisdiction. A state, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of Puerto Rico, Guam, American Samoa, the
Northern Mariana Islands, the United States Virgin Islands and Northern Mariana Islands, the United States Virgin Islands and
a federally recognized Indian tribe as provided in section 127 a federally recognized Indian tribe as provided in section 127
of the Adam Walsh Child Protection and Safety Act of 2006 of the Adam Walsh Child Protection and Safety Act of 2006
(Public Law 109-248, 42 U.S.C. 16927). (Public Law 109-248, 42 U.S.C. 16927).
Juvenile offender. One of the following: Juvenile offender. One of the following:
(1) An individual who was 14 years of age or older at the time (1) An individual who was 14 years of age or older at the time
the individual committed an offense which, if committed by the individual committed an offense which, if committed by
an adult, would be classified as an offense under 18 Pa.C.S. an adult, would be classified as an offense under 18 Pa.C.S.
3121 (relating to rape), 3123 (relating to involuntary deviate 3121 (relating to rape), 3123 (relating to involuntary deviate
sexual intercourse) or 3125 (relating to aggravated indecent sexual intercourse) or 3125 (relating to aggravated indecent
assault) or an attempt, solicitation or conspiracy to commit assault) or an attempt, solicitation or conspiracy to commit
an offense under 18 Pa.C.S. 3121, 3123, or 3125 and an offense under 18 Pa.C.S. 3121, 3123, or 3125 and
either: either:
(i) is adjudicated delinquent for such offense on or after (i) is adjudicated delinquent for such offense on or after
the effective date of this section; or the effective date of this section; or
(ii) has been adjudicated delinquent for such offense (ii) has been adjudicated delinquent for such offense
and on the effective date of this section is subject to the and on the effective date of this section is subject to the
jurisdiction of the court on the basis of that adjudication jurisdiction of the court on the basis of that adjudication
of delinquency, including commitment to an institution of delinquency, including commitment to an institution
or facility set forth in section 6352 (a)(3) (relating to a or facility set forth in section 6352 (a)(3) (relating to a
disposition of delinquent child). disposition of delinquent child).
(2) An individual who was 14 years of age or older at the time (2) An individual who was 14 years of age or older at the time
the individual committed an offense similar to an offense the individual committed an offense similar to an offense
under 18 Pa.C.S. 3121, 3123, or 3125 or an attempt, under 18 Pa.C.S. 3121, 3123, or 3125 or an attempt,
solicitation or conspiracy to commit an offense similar to an solicitation or conspiracy to commit an offense similar to an
offense under 18 Pa.C.S. 3121, 3123, or 3125 under the offense under 18 Pa.C.S. 3121, 3123, or 3125 under the
laws of the United States, another jurisdiction or a foreign laws of the United States, another jurisdiction or a foreign
country and was adjudicated delinquent for such an offense. country and was adjudicated delinquent for such an offense.
(3) An individual who, on or after the effective date of this (3) An individual who, on or after the effective date of this
paragraph, was required to register in a sexual offender paragraph, was required to register in a sexual offender
registry in another jurisdiction or foreign country based upon registry in another jurisdiction or foreign country based upon
an adjudication of delinquency. an adjudication of delinquency.
The term does not include a sexually violent delinquent child. The term does not include a sexually violent delinquent child.
Mental abnormality. A congenital or acquired condition of Mental abnormality. A congenital or acquired condition of
a person that affects the emotional or volitional capacity of a person that affects the emotional or volitional capacity of
the person in a manner that predisposes that person to the the person in a manner that predisposes that person to the
commission of criminal sexual acts to a degree that makes the commission of criminal sexual acts to a degree that makes the
person a menace to the health and safety of other persons. person a menace to the health and safety of other persons.
Military offense. An offense specified by the United States Military offense. An offense specified by the United States
Secretary of Defense under 10 U.S.C. 951 (relating to Secretary of Defense under 10 U.S.C. 951 (relating to
establishment; organization; administration). establishment; organization; administration).
Minor. Any individual under 18 years of age. Minor. Any individual under 18 years of age.
Municipality. A city, borough, incorporated town or township. Municipality. A city, borough, incorporated town or township.
NCIC. The National Crime Information Center. NCIC. The National Crime Information Center.
Penetration. Includes any penetration, however slight, of the Penetration. Includes any penetration, however slight, of the
genitals or anus or mouth of another person with a part of the genitals or anus or mouth of another person with a part of the
persons body or a foreign object for any purpose other than persons body or a foreign object for any purpose other than
good faith medical, hygienic or law enforcement procedures. good faith medical, hygienic or law enforcement procedures.
Predatory. An act directed at a stranger or at a person with Predatory. An act directed at a stranger or at a person with
whom a relationship has been initiated, established, maintained whom a relationship has been initiated, established, maintained
or promoted, in whole or in part, in order to facilitate or support or promoted, in whole or in part, in order to facilitate or support
victimization. victimization.
Registry. The Statewide Registry of Sexual Offenders Registry. The Statewide Registry of Sexual Offenders
established in section 9799.16(a) (relating to registry). established in section 9799.16(a) (relating to registry).
Residence. A location where an individual resides or is Residence. A location where an individual resides or is
domiciled or intends to be domiciled for 30 consecutive days domiciled or intends to be domiciled for 30 consecutive days
or more during a calendar year. The term includes a residence or more during a calendar year. The term includes a residence
which is mobile, including a houseboat, mobile home, trailer or which is mobile, including a houseboat, mobile home, trailer or
recreational vehicle. recreational vehicle.
Sexual offender. An individual required to register under Sexual offender. An individual required to register under
this subchapter. this subchapter.
Sexually violent delinquent child. As defined in section Sexually violent delinquent child. As defined in section
6402 (relating to definitions). 6402 (relating to definitions).
Sexually violent offense. An offense specified in section Sexually violent offense. An offense specified in section
9799.14 (relating to sexual offenses and tier system) as a Tier 9799.14 (relating to sexual offenses and tier system) as a Tier
I, Tier II or Tier III sexual offense. I, Tier II or Tier III sexual offense.
Sexually violent predator. An individual determined to be Sexually violent predator. An individual determined to be
a sexually violent predator under section 9795.4 (relating to a sexually violent predator under section 9795.4 (relating to
assessments) prior to the effective date of this subchapter or assessments) prior to the effective date of this subchapter or
an individual convicted of an offense specified in: an individual convicted of an offense specified in:
(1) section 9799.14(b)(1), (2), (3), (4), (5), (6), (8), (9), or (1) section 9799.14(b)(1), (2), (3), (4), (5), (6), (8), (9), or
(10) (relating to sexual offenses and tier system) or an (10) (relating to sexual offenses and tier system) or an
attempt, conspiracy or solicitation to commit any offense attempt, conspiracy or solicitation to commit any offense
under section 9799.14(b)(1), (2), (3), (4), (5), (6), (8), under section 9799.14(b)(1), (2), (3), (4), (5), (6), (8),
(9), or (10); (9), or (10);
(2) section 9799.14(c)(1), (1.1), (1.2), (2), (3), (4), (5) or (6) (2) section 9799.14(c)(1), (1.1), (1.2), (2), (3), (4), (5) or (6)
or an attempt, conspiracy or solicitation to commit an or an attempt, conspiracy or solicitation to commit an
offense under section 9799.14(c)(1), (1.1), (1.2), (2), (3), offense under section 9799.14(c)(1), (1.1), (1.2), (2), (3),
(4), (5) or (6); or (4), (5) or (6); or
(3) section 9799.14(d)(1), (2), (3), (4), (5) (6), (7), (8) or (9) (3) section 9799.14(d)(1), (2), (3), (4), (5) (6), (7), (8) or (9)
or an attempt, conspiracy or solicitation to commit an or an attempt, conspiracy or solicitation to commit an
offense under 9799.14(d)(1), (2), (3), (4), (5) (6), (7), (8) offense under 9799.14(d)(1), (2), (3), (4), (5) (6), (7), (8)
or (9) or (9)
who, on or after the effective date of this subchapter, is who, on or after the effective date of this subchapter, is
determined to be a sexually violent predator under section determined to be a sexually violent predator under section
9799.24 (relating to assessments) due to a mental abnormality 9799.24 (relating to assessments) due to a mental abnormality
or personality disorder that makes the individual likely to engage or personality disorder that makes the individual likely to engage
in predatory sexually violent offenses. The term includes an in predatory sexually violent offenses. The term includes an
individual determined to be a sexually violent predator or similar individual determined to be a sexually violent predator or similar
designation where the determination occurred in another designation where the determination occurred in another
jurisdiction, a foreign country or by court martial following a jurisdiction, a foreign country or by court martial following a
judicial or administrative determination pursuant to a process judicial or administrative determination pursuant to a process
similar to that under section 9799.24. In addition, the term similar to that under section 9799.24. In addition, the term
shall include any person convicted between January 23, 2005, shall include any person convicted between January 23, 2005,
and December 19, 2012, of any offense set forth in section and December 19, 2012, of any offense set forth in section
9799.13(3.1) (relating to applicability) determined by a court 9799.13(3.1) (relating to applicability) determined by a court
to be a sexually violent predator due to a mental abnormality to be a sexually violent predator due to a mental abnormality
or personality disorder that made the person likely to engage or personality disorder that made the person likely to engage
in predatory sexually violent offenses, which person shall be in predatory sexually violent offenses, which person shall be
deemed a sexually violent predator under this subchapter. deemed a sexually violent predator under this subchapter.
Student. An individual who is enrolled in or attends a public Student. An individual who is enrolled in or attends a public
or private educational institution within this Commonwealth or private educational institution within this Commonwealth
on a full-time or part-time basis, including a secondary on a full-time or part-time basis, including a secondary
school, trade or professional institution or institution of higher school, trade or professional institution or institution of higher
education. The term does not include an individual enrolled in education. The term does not include an individual enrolled in
an educational institution exclusively through the Internet or via an educational institution exclusively through the Internet or via
correspondence courses. correspondence courses.
Temporary lodging. The specific location, including street Temporary lodging. The specific location, including street
address, where a sexual offender is staying when away from address, where a sexual offender is staying when away from
the sexual offenders residence for seven or more days. the sexual offenders residence for seven or more days.
Tier I sexual offense. An offense specified in section Tier I sexual offense. An offense specified in section
9799.14(b) (relating to sexual offenses and tier system). 9799.14(b) (relating to sexual offenses and tier system).
Tier II sexual offense. An offense specified in section Tier II sexual offense. An offense specified in section
9799.14(c) (relating to sexual offenses and tier system). 9799.14(c) (relating to sexual offenses and tier system).
Tier III sexual offense. An offense specified in section Tier III sexual offense. An offense specified in section
9799.14(d) (relating to sexual offenses and tier system). 9799.14(d) (relating to sexual offenses and tier system).
Transient. An individual required to register under this Transient. An individual required to register under this
subchapter who does not have a residence but nevertheless subchapter who does not have a residence but nevertheless
resides in this Commonwealth in a temporary habitat or other resides in this Commonwealth in a temporary habitat or other
temporary place of abode or dwelling, including, but not limited temporary place of abode or dwelling, including, but not limited
to, a homeless shelter or park. to, a homeless shelter or park.
C. Registration C. Registration
Pennsylvanias compliance with the Adam Walsh Act aimed to strengthen the Pennsylvanias compliance with the Adam Walsh Act aimed to strengthen the
framework for sex offender registration. Among various changes to Pennsylvanias framework for sex offender registration. Among various changes to Pennsylvanias
former law, the new law establishes a tiered classification system of offenders, stricter former law, the new law establishes a tiered classification system of offenders, stricter
reporting standards for certain offenders, and stricter penalties for failure to report. The reporting standards for certain offenders, and stricter penalties for failure to report. The
new legislation, SORNA, created a three tier system for sexual offenses and defined the new legislation, SORNA, created a three tier system for sexual offenses and defined the
crimes within these tiers. The tier system is used to determine the period of registration crimes within these tiers. The tier system is used to determine the period of registration
with the statewide sexual offenders registry. See 42 Pa.Cons.Stat.Ann. 9799.16. with the statewide sexual offenders registry. See 42 Pa.Cons.Stat.Ann. 9799.16.
SORNA significantly increased the frequency of in-person reporting for many SORNA significantly increased the frequency of in-person reporting for many
individuals. See 42 Pa.Cons.Stat.Ann. 9799.15(e). It also increased the depth and individuals. See 42 Pa.Cons.Stat.Ann. 9799.15(e). It also increased the depth and
breadth of registry information collected. See 42 Pa.Cons.Stat.Ann. 9799.16(b). It breadth of registry information collected. See 42 Pa.Cons.Stat.Ann. 9799.16(b). It
also allows for the coordinated transmission of information among the states through a also allows for the coordinated transmission of information among the states through a
comprehensive and centralized database. Under the new framework, the Commonwealth comprehensive and centralized database. Under the new framework, the Commonwealth
can efficiently monitor sex offenders and promote awareness in the communities, can efficiently monitor sex offenders and promote awareness in the communities,
thereby enhancing the overall safety. thereby enhancing the overall safety.
SORNA contains the following sections which address registration: SORNA contains the following sections which address registration:

Applicability: Specifies the individuals who must register. Applicability: Specifies the individuals who must register.

Registry: Establishes the statewide registry of sexual offenders and Registry: Establishes the statewide registry of sexual offenders and
requires the Pennsylvania State Police to create and maintain the registry. requires the Pennsylvania State Police to create and maintain the registry.

Initial Registration: Sets forth the rules for initial registration, whether Initial Registration: Sets forth the rules for initial registration, whether
incarcerated or not, and whether it derives from an adult conviction or incarcerated or not, and whether it derives from an adult conviction or
juvenile adjudication. juvenile adjudication.

Duty to Inform: Specifies the information that must be supplied to the Duty to Inform: Specifies the information that must be supplied to the
individuals responsible for registration, as well as the parties or individuals responsible for registration, as well as the parties or
entities that must provide it. entities that must provide it.
D. Individuals Who Must Register with the Pennsylvania State Police D. Individuals Who Must Register with the Pennsylvania State Police
The statutory scheme for registration of sexual offenders is set forth in 42 The statutory scheme for registration of sexual offenders is set forth in 42
Pa.Cons.Stat.Ann. 9799.13. Additional provisions dealing with registration include: Pa.Cons.Stat.Ann. 9799.13. Additional provisions dealing with registration include:
Section 9799.15 relating to period of registration; Section 9799.15 relating to period of registration;
Section 9799.19 relating to initial registration; and Section 9799.19 relating to initial registration; and
Section 9799.25 relating to verification by sexual Section 9799.25 relating to verification by sexual
offenders, which includes appearing in person and offenders, which includes appearing in person and
being photographed. being photographed.
1. Individuals convicted of a sexually violent offense 1. Individuals convicted of a sexually violent offense
Any individual who Any individual who

has been convicted of a sexually violent offense as of the statutes has been convicted of a sexually violent offense as of the statutes
effective date (December 20, 2012) and effective date (December 20, 2012) and
has a residence within Pennsylvania or is a transient.2 has a residence within Pennsylvania or is a transient.2

has been convicted of a sexually violent offense in Pennsylvania as has been convicted of a sexually violent offense in Pennsylvania as
of the statutes effective date (December 20, 2012) and of the statutes effective date (December 20, 2012) and
does not have a residence in Pennsylvania and is either does not have a residence in Pennsylvania and is either
employed in Pennsylvania, or employed in Pennsylvania, or
2 42 Pa.Cons.stat.ann. 9799.13(1). If an individual fails to establish a residence the individual must register as a transient. 42 Pa.Cons. 2 42 Pa.Cons.stat.ann. 9799.13(1). If an individual fails to establish a residence the individual must register as a transient. 42 Pa.Cons.
stat.ann 9799.19(j). This includes juvenile offenders pursuant to 42 Pa.Cons.stat.ann 9799.13(1)(I). Juvenile offenders were required stat.ann 9799.19(j). This includes juvenile offenders pursuant to 42 Pa.Cons.stat.ann 9799.13(1)(I). Juvenile offenders were required
to register under SORNA for life, however, that section of SORNA, 42 Pa.Cons.stat.ann 9799.15(a)(4) was declared unconstitutional to register under SORNA for life, however, that section of SORNA, 42 Pa.Cons.stat.ann 9799.15(a)(4) was declared unconstitutional
by the Pennsylvania Supreme Court in In The Interest of J.B., A Minor, --- A.3d. ---, 2014WL7369785 (Pa. filed 12-29-14. by the Pennsylvania Supreme Court in In The Interest of J.B., A Minor, --- A.3d. ---, 2014WL7369785 (Pa. filed 12-29-14.
is a student in Pennsylvania.3 is a student in Pennsylvania.3

has been convicted of a sexually violent offense as of the statutes has been convicted of a sexually violent offense as of the statutes
effective date (December 20, 2012) and effective date (December 20, 2012) and
does not have a residence in Pennsylvania or is not a transient and does not have a residence in Pennsylvania or is not a transient and
is either is either
employed in Pennsylvania, or employed in Pennsylvania, or
Any individual who, between January 23, 2005 and December 19, Any individual who, between January 23, 2005 and December 19,
2012, was: 2012, was:
convicted of a sexually violent offense; or convicted of a sexually violent offense; or
released from incarceration which resulted from a conviction for a released from incarceration which resulted from a conviction for a
sexually violent offense; or sexually violent offense; or
under the supervision of the Pennsylvania Board of Porbation and under the supervision of the Pennsylvania Board of Porbation and
Parole or a county probation/parole department as a result of a Parole or a county probation/parole department as a result of a
conviction for a sexually violent offense.5 conviction for a sexually violent offense.5
2. Individuals under sentence for a sexually violent offense 2. Individuals under sentence for a sexually violent offense

as a result of a conviction for a sexually violent offense as of the as a result of a conviction for a sexually violent offense as of the
statutes effective date (December 20, 2012) was either: statutes effective date (December 20, 2012) was either:
an inmate in a State or county correctional institution, an inmate in a State or county correctional institution,
including a community corrections center or a community including a community corrections center or a community
contract facility, or contract facility, or
under supervision by the Pennsylvania Board of Probation under supervision by the Pennsylvania Board of Probation
and Parole or county probation or parole, or and Parole or county probation or parole, or
under a sentence of intermediate punishment, or under a sentence of intermediate punishment, or
has had supervision transferred pursuant to 42 Pa.Cons. has had supervision transferred pursuant to 42 Pa.Cons.
Stat.Ann. 9799.19(g).6 Stat.Ann. 9799.19(g).6
3. Individuals under federal sentence for a sexually violent offense 3. Individuals under federal sentence for a sexually violent offense

as a result of a conviction for a sexually violent offense as of the as a result of a conviction for a sexually violent offense as of the
3 42 Pa.Cons.stat.ann. 9799.13(1.1). 3 42 Pa.Cons.stat.ann. 9799.13(1.1).
5 42 Pa.Cons.stat.ann. 9799.13(3.1). For purposes of subsection 3.1, certain offenses are excluded from the definition of sexually 5 42 Pa.Cons.stat.ann. 9799.13(3.1). For purposes of subsection 3.1, certain offenses are excluded from the definition of sexually
violent offense. See 42 Pa.Cons.Stat.Ann. 9799.13(3.1)(ii). violent offense. See 42 Pa.Cons.Stat.Ann. 9799.13(3.1)(ii).
6 42 Pa.Cons.stat.ann. 9799.13(2). Pursuant to the law governing initial registration, registration is required if the convicted individual 6 42 Pa.Cons.stat.ann. 9799.13(2). Pursuant to the law governing initial registration, registration is required if the convicted individual
does not intent to reside in Pennsylvania: does not intent to reside in Pennsylvania:
(g) Supervision of individual convicted in Commonwealth who does not intend to reside in Commonwealth.--On or after (g) Supervision of individual convicted in Commonwealth who does not intend to reside in Commonwealth.--On or after
the effective date of this section, an individual convicted of a sexually violent offense within this Commonwealth the effective date of this section, an individual convicted of a sexually violent offense within this Commonwealth
who seeks transfer of supervision to another jurisdiction pursuant to the Interstate Compact for Adult Offender Supervision who seeks transfer of supervision to another jurisdiction pursuant to the Interstate Compact for Adult Offender Supervision
shall not have supervision transferred to another jurisdiction prior to the individuals registration with the Pennsylvania State shall not have supervision transferred to another jurisdiction prior to the individuals registration with the Pennsylvania State
Police as set forth in this section. Police as set forth in this section.
42 Pa.Cons.stat.ann. 9799.19(g). 42 Pa.Cons.stat.ann. 9799.19(g).
statutes effective date (December 20, 2012) was either: statutes effective date (December 20, 2012) was either:
an inmate in a Federal correctional institution, or an inmate in a Federal correctional institution, or
is under supervision by Federal probation authorities, and is under supervision by Federal probation authorities, and
has a residence in Pennsylvania or is a transient, or has a residence in Pennsylvania or is a transient, or
is employed in Pennsylvania, or is employed in Pennsylvania, or
4. Individuals who previously failed to register 4. Individuals who previously failed to register

was required to register prior to December 20, 2012 but did not was required to register prior to December 20, 2012 but did not
fulfill the period of registration as of December 20, 2012, or fulfill the period of registration as of December 20, 2012, or
was required to register prior to December 20, 2012 but did not.8 was required to register prior to December 20, 2012 but did not.8
5. Other states and foreign jurisdictions 5. Other states and foreign jurisdictions

as a result of a conviction for a sexually violent offense or under a as a result of a conviction for a sexually violent offense or under a
sexual offender statute in another state or a foreign country, as of sexual offender statute in another state or a foreign country, as of
the statutes effective date (December 20, 2012), was required to the statutes effective date (December 20, 2012), was required to
register in the jurisdiction where the individual is convicted and: register in the jurisdiction where the individual is convicted and:

as a result of a conviction for an offense listed in 42 Pa.Cons. as a result of a conviction for an offense listed in 42 Pa.Cons.
Stat.Ann. 9799.14(b)(23)10 was required to register in a sexual Stat.Ann. 9799.14(b)(23)10 was required to register in a sexual
offender registry in another jurisdiction or foreign country as of offender registry in another jurisdiction or foreign country as of
the statutes effective date (December 20, 2012), and: the statutes effective date (December 20, 2012), and:
Any individual who, as of the statutes effective date (December 20, Any individual who, as of the statutes effective date (December 20,
2012) 2012)
was convicted of a sexually violent offense in another jurisdiction was convicted of a sexually violent offense in another jurisdiction
or foreign country, or or foreign country, or
was incarcerated or under supervision as a result of a conviction was incarcerated or under supervision as a result of a conviction
for a sexually violent offense in another jurisdiction or foreign for a sexually violent offense in another jurisdiction or foreign
8 42 Pa.Cons.stat.ann. 9799.13(3). 8 42 Pa.Cons.stat.ann. 9799.13(3).
10 All sexual offenses listed in the Tier System are specified in Chapter 7, Addendum 2. Under item number 23, the Tier System includes: 10 All sexual offenses listed in the Tier System are specified in Chapter 7, Addendum 2. Under item number 23, the Tier System includes:
(23) A conviction for a sexual offense in another jurisdiction or foreign country that is not set forth in this section, but (23) A conviction for a sexual offense in another jurisdiction or foreign country that is not set forth in this section, but
nevertheless requires registration under a sexual offender statute in the jurisdiction or foreign country. nevertheless requires registration under a sexual offender statute in the jurisdiction or foreign country.
42 Pa.Cons.stat.ann. 9799.14(b)(23). 42 Pa.Cons.stat.ann. 9799.14(b)(23).
country, and country, and

6. Juvenile offenders 6. Juvenile offenders
2012) 2012)
was a juvenile offender who was adjudicated delinquent in was a juvenile offender who was adjudicated delinquent in
Pennsylvania, or Pennsylvania, or
was adjudicated delinquent in another jurisdiction or a foreign was adjudicated delinquent in another jurisdiction or a foreign
county, and county, and
has a residence in Pennsylvania, or has a residence in Pennsylvania, or
2012) 2012)
was a juvenile offender who was adjudicated delinquent in was a juvenile offender who was adjudicated delinquent in
Pennsylvania, Pennsylvania,
but does not have a residence in Pennsylvania, but does not have a residence in Pennsylvania,
is not a transient, is not a transient,
is not employed in Pennsylvania or is not employed in Pennsylvania or
is not a student in Pennsylvania.14 is not a student in Pennsylvania.14
Any individual who was required to register in a sexual offender Any individual who was required to register in a sexual offender
registry as a result of an adjudication of delinquency for an offense registry as a result of an adjudication of delinquency for an offense
which occurred in a foreign country or another jurisdiction, which which occurred in a foreign country or another jurisdiction, which
required registration in that jurisdiction, and required registration in that jurisdiction, and
between January 23, 2005 and December 19, 2012: between January 23, 2005 and December 19, 2012:
established a residence or was a transient in Pennsylvania, established a residence or was a transient in Pennsylvania,
or or
was employed in Pennsylvania, or was a student in was employed in Pennsylvania, or was a student in
Pennsylvania.15 Pennsylvania.15
2012): 2012):
was a sexually violent delinquent child who is committed for was a sexually violent delinquent child who is committed for
involuntary treatment, or involuntary treatment, or
was already under commitment in a State-owned facility or unit was already under commitment in a State-owned facility or unit

14 42 Pa.Cons.stat.ann. 9799.13(8.1). Additionally, individuals falling under this category must register prior to leaving the 14 42 Pa.Cons.stat.ann. 9799.13(8.1). Additionally, individuals falling under this category must register prior to leaving the
Commonwealth in accordance with 42 Pa.Cons.stat.ann. 9799.19. Commonwealth in accordance with 42 Pa.Cons.stat.ann. 9799.19.
pursuant to Chapter 64.16 pursuant to Chapter 64.16
However, under 9799.17,17 the registration requirements However, under 9799.17,17 the registration requirements
for certain juvenile offenders may be terminated upon for certain juvenile offenders may be terminated upon
petition if all of the following are satisfied: petition if all of the following are satisfied:
i. At least 25 years have elapsed since the individual was i. At least 25 years have elapsed since the individual was
adjudicated delinquent for an offense related to 18 Pa.Cons. adjudicated delinquent for an offense related to 18 Pa.Cons.
Stat.Ann 3121 (Rape), 18 Pa.Cons.Stat.Ann 3123 Stat.Ann 3121 (Rape), 18 Pa.Cons.Stat.Ann 3123
(Involuntary Deviate Sexual Intercourse), or 18 Pa.Cons. (Involuntary Deviate Sexual Intercourse), or 18 Pa.Cons.
Stat.Ann 3125 (Aggravated Indecent Assault), including Stat.Ann 3125 (Aggravated Indecent Assault), including
related inchoate offenses or comparable offenses in other related inchoate offenses or comparable offenses in other
jurisdictions, jurisdictions,
ii. In the 25 years prior to the petition, the individual has not ii. In the 25 years prior to the petition, the individual has not
been convicted of a subsequent sexually violent offense or been convicted of a subsequent sexually violent offense or
any subsequent offense that is, any subsequent offense that is,
a) Graded as a second degree misdemeanor, or higher; a) Graded as a second degree misdemeanor, or higher;
or, or,
b) Punishable by a term of imprisonment that is b) Punishable by a term of imprisonment that is
greater than one year. greater than one year.
iii. the individual successfully completed court-ordered iii. the individual successfully completed court-ordered
supervision without revocation; and, supervision without revocation; and,
iv. the individual successfully completed a recognized iv. the individual successfully completed a recognized
treatment program for sexual offenders. treatment program for sexual offenders.
E. Sexual Offenses and the Tier System E. Sexual Offenses and the Tier System
The Tier System is listed in 42 Pa.Cons.Stat.Ann. 9799.14, and breaks sexual The Tier System is listed in 42 Pa.Cons.Stat.Ann. 9799.14, and breaks sexual
violence crimes into three tiers, (1) 15-year registration crimes, (2) 25-year registration violence crimes into three tiers, (1) 15-year registration crimes, (2) 25-year registration
crimes, and (3) lifetime registration crimes. crimes, and (3) lifetime registration crimes.
Tier I Sexual Offenses Tier I Sexual Offenses

In addition to others, the following crimes or any attempt, conspiracy or In addition to others, the following crimes or any attempt, conspiracy or
solicitation thereof: solicitation thereof:
Unlawful Restraint: 18 Pa.Cons.Stat.Ann. 2902(b) Unlawful Restraint: 18 Pa.Cons.Stat.Ann. 2902(b)

False Imprisonment: 18 Pa.Cons.Stat.Ann. 2903(b) False Imprisonment: 18 Pa.Cons.Stat.Ann. 2903(b)
Interference with Custody of Children: 18 Pa.Cons.Stat.Ann. 2904 Interference with Custody of Children: 18 Pa.Cons.Stat.Ann. 2904
16 42 Pa.Cons.stat.ann. 9799.13(9). Chapter 64, Court-Ordered Involuntary Treatment of Certain Sexually Violent Persons, is 16 42 Pa.Cons.stat.ann. 9799.13(9). Chapter 64, Court-Ordered Involuntary Treatment of Certain Sexually Violent Persons, is
codified in 42 Pa.Cons.stat.ann. 6401 6409. codified in 42 Pa.Cons.stat.ann. 6401 6409.
Luring a Child into a Motor Vehicle or Structure: 18 Pa.Cons.Stat.Ann. 2910 Luring a Child into a Motor Vehicle or Structure: 18 Pa.Cons.Stat.Ann. 2910
Institutional Sexual Assault: 18 Pa.Cons.Stat.Ann. 3124.2(a) Institutional Sexual Assault: 18 Pa.Cons.Stat.Ann. 3124.2(a)
Indecent Assault: 18 Pa.Cons.Stat.Ann. 3126(a)(1) Indecent Assault: 18 Pa.Cons.Stat.Ann. 3126(a)(1)
Corruption of Minors (F3): 18 Pa.Cons.Stat.Ann. 6301(a)(1)(ii)18 Corruption of Minors (F3): 18 Pa.Cons.Stat.Ann. 6301(a)(1)(ii)18
Sexual Abuse of Children: 18 Pa.Cons.Stat.Ann. 6312(d) Sexual Abuse of Children: 18 Pa.Cons.Stat.Ann. 6312(d)
Invasion of Privacy: 18 Pa.Cons.Stat.Ann. 7507.1 Invasion of Privacy: 18 Pa.Cons.Stat.Ann. 7507.1
Video Voyeurism: 18 U.S.C. 1801 Video Voyeurism: 18 U.S.C. 1801
Certain Activities Relating to Material Involving the Sexual Exploitation of Certain Activities Relating to Material Involving the Sexual Exploitation of
Minors: 18 U.S.C. 2252(a)(4) Minors: 18 U.S.C. 2252(a)(4)
Certain Activities Relating to Material Constituting or Containing Child Certain Activities Relating to Material Constituting or Containing Child
Pornography: 18 U.S.C. 2252A Pornography: 18 U.S.C. 2252A
Misleading Domain Names on the Internet: 18 U.S.C. 2252B Misleading Domain Names on the Internet: 18 U.S.C. 2252B
Misleading Words or Digital Images on the Internet: 18 U.S.C. 2252C Misleading Words or Digital Images on the Internet: 18 U.S.C. 2252C
Coercion and Enticement: 18 U.S.C. 2422(a) Coercion and Enticement: 18 U.S.C. 2422(a)
Transportation of Minors: 18 U.S.C. 2423(b) Transportation of Minors: 18 U.S.C. 2423(b)
Illicit Sexual Conduct in Foreign Places: 18 U.S.C. 2423(c) Illicit Sexual Conduct in Foreign Places: 18 U.S.C. 2423(c)
Filing Factual Statement About Alien Individual: 18 U.S.C. 2424 Filing Factual Statement About Alien Individual: 18 U.S.C. 2424
Use of Interstate Facilities to Transmit Information about a Minor: 18 U.S.C. Use of Interstate Facilities to Transmit Information about a Minor: 18 U.S.C.
2425 2425
The list of Tier I offenses also includes: The list of Tier I offenses also includes:
A comparable military offense or similar offense under the laws of A comparable military offense or similar offense under the laws of
another jurisdiction or foreign country or under a former law of this another jurisdiction or foreign country or under a former law of this
Commonwealth Commonwealth
A conviction for a sexual offense in another jurisdiction or foreign A conviction for a sexual offense in another jurisdiction or foreign
country that requires registration under a sexual offender statute in that country that requires registration under a sexual offender statute in that
jurisdiction or foreign country. jurisdiction or foreign country.
Tier II Sexual Offenses Tier II Sexual Offenses

Statutory Sexual Assault: 18 Pa.Cons.Stat.Ann. 3122.1(a)(2) Statutory Sexual Assault: 18 Pa.Cons.Stat.Ann. 3122.1(a)(2)
Prostitution and Related Offenses: 18 Pa.Cons.Stat.Ann. 5902(b.1) Prostitution and Related Offenses: 18 Pa.Cons.Stat.Ann. 5902(b.1)
Obscene and Other Sexual Materials and Performances: 18 Pa.Cons.Stat.Ann. Obscene and Other Sexual Materials and Performances: 18 Pa.Cons.Stat.Ann.
5903(a)(3)(ii), (4)(ii), (5)(ii) or (6) 5903(a)(3)(ii), (4)(ii), (5)(ii) or (6)
Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312(b) & (c) Sexual Abuse of Children, 18 Pa.Cons.Stat.Ann. 6312(b) & (c)
Unlawful Contact with Minor: 18 Pa.Cons.Stat.Ann. 6318 Unlawful Contact with Minor: 18 Pa.Cons.Stat.Ann. 6318
Sexual Exploitation of Children: 18 Pa.Cons.Stat.Ann. 6320 Sexual Exploitation of Children: 18 Pa.Cons.Stat.Ann. 6320
18 In Commonwealth v. Sampolski, 89 A.3d 1287 (Pa. Super. 2014), the Superior Court held that corruption of minors graded as a 18 In Commonwealth v. Sampolski, 89 A.3d 1287 (Pa. Super. 2014), the Superior Court held that corruption of minors graded as a
misdemeanor of the first degree under 18 Pa.Cons.stat.ann. 6301(a)(1)(i) is not a registration offense but that SORNA specifically misdemeanor of the first degree under 18 Pa.Cons.stat.ann. 6301(a)(1)(i) is not a registration offense but that SORNA specifically
includes corruption of minors under subsection (ii), which is graded as a felony of the third degree, as a registration offense. includes corruption of minors under subsection (ii), which is graded as a felony of the third degree, as a registration offense.
Indecent Assault: 18 Pa.Cons.Stat.Ann. 3126(a)(2), (3),(4),(5),(6) or (8) Indecent Assault: 18 Pa.Cons.Stat.Ann. 3126(a)(2), (3),(4),(5),(6) or (8)
Sex Trafficking of Children by Force, Fraud, or Coercion: 18 U.S.C. 1591 Sex Trafficking of Children by Force, Fraud, or Coercion: 18 U.S.C. 1591
Sexual Abuse of a Minor or Ward: 18 U.S.C. 2243 Sexual Abuse of a Minor or Ward: 18 U.S.C. 2243
Abusive Sexual Contact Victim 13 Years Old But Under 18 Years: 18 U.S.C. Abusive Sexual Contact Victim 13 Years Old But Under 18 Years: 18 U.S.C.
2244 2244
Sexual Exploitation of Children: 18 U.S.C. 2251 Sexual Exploitation of Children: 18 U.S.C. 2251
Selling or Buying of Children: 18 U.S.C. 2251A Selling or Buying of Children: 18 U.S.C. 2251A
Production of Sexually Explicit Depictions of Minor for Importation to U.S.: 18 Production of Sexually Explicit Depictions of Minor for Importation to U.S.: 18
U.S.C. 2260 U.S.C. 2260
The list of Tier II offenses also includes: The list of Tier II offenses also includes:
Tier III Sexual Offenses Tier III Sexual Offenses

Lifetime Registration Period Lifetime Registration Period
Kidnapping: 18 Pa.Cons.Stat.Ann. 2901(a.1) Kidnapping: 18 Pa.Cons.Stat.Ann. 2901(a.1)

Rape: 18 Pa.Cons.Stat.Ann. 3121 Rape: 18 Pa.Cons.Stat.Ann. 3121
Statutory Sexual Assault: 18 Pa.Cons.Stat.Ann. 3122.1(b) Statutory Sexual Assault: 18 Pa.Cons.Stat.Ann. 3122.1(b)
Involuntary Deviate Sexual Intercourse: 18 Pa.Cons.Stat.Ann. 3123 Involuntary Deviate Sexual Intercourse: 18 Pa.Cons.Stat.Ann. 3123
Sexual Assault: 18 Pa.Cons.Stat.Ann. 3124.1 Sexual Assault: 18 Pa.Cons.Stat.Ann. 3124.1
Institutional Sexual Assault: 18 Pa.Cons.Stat.Ann. 3124.2(a.1) Institutional Sexual Assault: 18 Pa.Cons.Stat.Ann. 3124.2(a.1)
Aggravated Indecent Assault: 18 Pa.Cons.Stat.Ann. 3125 Aggravated Indecent Assault: 18 Pa.Cons.Stat.Ann. 3125
Indecent Assault when Complainant is Less than 13 Years Old: 18 Pa.Cons. Indecent Assault when Complainant is Less than 13 Years Old: 18 Pa.Cons.
Stat.Ann. 3126(a)(7) Stat.Ann. 3126(a)(7)
Incest: 18 Pa.Cons.Stat.Ann. 4302(b) Incest: 18 Pa.Cons.Stat.Ann. 4302(b)
Aggravated Sexual Abuse: 18 U.S.C. 2241 Aggravated Sexual Abuse: 18 U.S.C. 2241
Sexual Abuse: 18 U.S.C. 2242 Sexual Abuse: 18 U.S.C. 2242
Abusive Sexual Contact When Victim is Less than 13 Years of Age: 18 U.S.C. Abusive Sexual Contact When Victim is Less than 13 Years of Age: 18 U.S.C.
2244 2244
The list of Tier III offenses also includes: The list of Tier III offenses also includes:
Two or more convictions of offenses listed as Tier I or Tier II sexual Two or more convictions of offenses listed as Tier I or Tier II sexual
offenses. offenses.
F. Registration F. Registration
1. Periods of Registration Under SORNA 1. Periods of Registration Under SORNA

Subject to tolling, the following registration periods apply for individuals Subject to tolling, the following registration periods apply for individuals
required to register under 42 Pa.Cons.Stat.Ann. 9799.13: required to register under 42 Pa.Cons.Stat.Ann. 9799.13:
1) 15-Year Registration 1) 15-Year Registration

An individual must register for a period of 15 years if convicted of a An individual must register for a period of 15 years if convicted of a
Tier I sexual offense pursuant to 9799.15(a)(1), except an offense Tier I sexual offense pursuant to 9799.15(a)(1), except an offense
as specified in 9799.14(b)(23).19 as specified in 9799.14(b)(23).19
2) 25-Year Registration 2) 25-Year Registration

An individual must register for a period of 25 years if convicted of a An individual must register for a period of 25 years if convicted of a
Tier II sexual offense pursuant to 9799.15(a)(2).20 Tier II sexual offense pursuant to 9799.15(a)(2).20
3) Lifetime Registration 3) Lifetime Registration

Lifetime registration is required for: Lifetime registration is required for:
an individual convicted of a Tier III sexual offense pursuant to an individual convicted of a Tier III sexual offense pursuant to
9799.15(a)(2).21 9799.15(a)(2).21
an individual convicted of either a Tier I, Tier II, or Tier III sexual an individual convicted of either a Tier I, Tier II, or Tier III sexual
offense who is determined to be a sexually violent predator, offense who is determined to be a sexually violent predator,
pursuant to 9799.15(a)(6) and (d).22 pursuant to 9799.15(a)(6) and (d).22
a juvenile offender pursuant to 9799.15(a)(4).23 a juvenile offender pursuant to 9799.15(a)(4).23
a juvenile offender determined to be a sexually violent delinquent a juvenile offender determined to be a sexually violent delinquent
child, pursuant to 9799.15(a)(5).24 child, pursuant to 9799.15(a)(5).24
a juvenile offender who was adjudicated delinquent in another a juvenile offender who was adjudicated delinquent in another
jurisdiction or foreign country for an offense similar to an offense jurisdiction or foreign country for an offense similar to an offense
which would require the individual to register if the offense were which would require the individual to register if the offense were
committed in Pennsylvania, pursuant to 9799.15(a)(4.1).25 committed in Pennsylvania, pursuant to 9799.15(a)(4.1).25
2. Special Registration Period for Out-of-State Offenders 2. Special Registration Period for Out-of-State Offenders
Individuals required to register in another jurisdiction must register in Individuals required to register in another jurisdiction must register in
the Commonwealth for an equal period of time if, the Commonwealth for an equal period of time if,
a) the individual is a juvenile offender who is required to register a) the individual is a juvenile offender who is required to register
for an offense which, if committed in the Commonwealth, would for an offense which, if committed in the Commonwealth, would
19 The Tier I sexual offenses are listed in 42 Pa.Cons.stat.ann. 9799.14(b). 19 The Tier I sexual offenses are listed in 42 Pa.Cons.stat.ann. 9799.14(b).
20 The Tier II sexual offenses are listed in 42 Pa.Cons.stat.ann. 9799.14(c). 20 The Tier II sexual offenses are listed in 42 Pa.Cons.stat.ann. 9799.14(c).
21 The Tier III sexual offenses are listed in 42 Pa.Cons.stat.ann. 9799.14(d). 21 The Tier III sexual offenses are listed in 42 Pa.Cons.stat.ann. 9799.14(d).
22 Following an assessment and hearing, the trial court makes a determination whether the individual is a sexually violent predator pursuant 22 Following an assessment and hearing, the trial court makes a determination whether the individual is a sexually violent predator pursuant
to 42 Pa.Cons.stat.ann. 9799.24(e). to 42 Pa.Cons.stat.ann. 9799.24(e).
23 A juvenile offender is defined in 42 Pa.Cons.stat.ann. 9799.12. See alSo In re J.M., 89 a.3d 688 (Pa. suPer. 2014). 23 A juvenile offender is defined in 42 Pa.Cons.stat.ann. 9799.12. See alSo In re J.M., 89 a.3d 688 (Pa. suPer. 2014).
24 A sexually violent delinquent child is defined in 42 Pa.Cons.stat.ann. 6402. However, under 42 Pa.Cons.stat.ann. 9799.17, 24 A sexually violent delinquent child is defined in 42 Pa.Cons.stat.ann. 6402. However, under 42 Pa.Cons.stat.ann. 9799.17,
certain juvenile offenders registration requirement may be terminated upon petition if certain criteria are met. See Section D(6) above. certain juvenile offenders registration requirement may be terminated upon petition if certain criteria are met. See Section D(6) above.
25 However, under 42 Pa.Cons.stat.ann. 9799.17, certain juvenile offenders registration requirement may be terminated upon petition 25 However, under 42 Pa.Cons.stat.ann. 9799.17, certain juvenile offenders registration requirement may be terminated upon petition
if certain criteria are met. See Section D(6) above. if certain criteria are met. See Section D(6) above.
not require registration. See 42 Pa.Cons.Stat.Ann. 9799.15(a) not require registration. See 42 Pa.Cons.Stat.Ann. 9799.15(a)
(4); or (4); or
b) the individual is subject to registration under 42 Pa.Cons.Stat. b) the individual is subject to registration under 42 Pa.Cons.Stat.
Ann. 9799.13(7.1).26 See 42 Pa.Cons.Stat.Ann. 9799.15(a)(7). Ann. 9799.13(7.1).26 See 42 Pa.Cons.Stat.Ann. 9799.15(a)(7).
3. Periodic In-Person Appearances27 3. Periodic In-Person Appearances27
An individual must appear at an approved registration site to provide or An individual must appear at an approved registration site to provide or
verify their registration and to be photographed as follows: verify their registration and to be photographed as follows:
Tier 1 offenders Tier 1 offenders

An individual convicted of a Tier 1 offense must appear annually - 42 An individual convicted of a Tier 1 offense must appear annually - 42
Pa.Cons.Stat.Ann. 9799.15(e)(1). Pa.Cons.Stat.Ann. 9799.15(e)(1).

An individual convicted of a Tier 2 offense must appear semiannually - 42 An individual convicted of a Tier 2 offense must appear semiannually - 42

An individual convicted of a Tier 3 offense must appear quarterly - 42 An individual convicted of a Tier 3 offense must appear quarterly - 42
Foreign jurisdiction offenders Foreign jurisdiction offenders

An individual who must register under 9799.13(7.1) must appear annually An individual who must register under 9799.13(7.1) must appear annually
- 42 Pa.Cons.Stat.Ann. 9799.15(e)(4). - 42 Pa.Cons.Stat.Ann. 9799.15(e)(4).
Sexually Violent Predators Sexually Violent Predators

An individual designated as a sexually violent predator must appear An individual designated as a sexually violent predator must appear
quarterly28 - 42 Pa.Cons.Stat.Ann. 9799.15(f). quarterly28 - 42 Pa.Cons.Stat.Ann. 9799.15(f).
Transient offenders Transient offenders

Transient offenders must appear monthly - 42 Pa.Cons.Stat.Ann. Transient offenders must appear monthly - 42 Pa.Cons.Stat.Ann.
9799.15(h)(1). 9799.15(h)(1).
Juvenile Offenders and Sexually Violent Delinquent Children Juvenile Offenders and Sexually Violent Delinquent Children
Unless they are transient, juvenile offenders and those designated as Unless they are transient, juvenile offenders and those designated as
sexually violent delinquent children must appear quarterly - 42 Pa.Cons. sexually violent delinquent children must appear quarterly - 42 Pa.Cons.
Stat.Ann. 9799.15(h)(2). Stat.Ann. 9799.15(h)(2).
NOTE: In-person reporting is not required by certain incarcerated NOTE: In-person reporting is not required by certain incarcerated
26 Under 9799.13(7.1), the individual must register in the Commonwealth if he or she is required to register in another jurisdiction for 26 Under 9799.13(7.1), the individual must register in the Commonwealth if he or she is required to register in another jurisdiction for
the conviction of an offense set forth in section 9799.14(b)(23) and: (i) has a residence in this Commonwealth or is a transient; (ii) is the conviction of an offense set forth in section 9799.14(b)(23) and: (i) has a residence in this Commonwealth or is a transient; (ii) is
employed within this Commonwealth; or (iii) is a student within this Commonwealth. employed within this Commonwealth; or (iii) is a student within this Commonwealth.
27 In addition to the periodic in-person appearances, an individual must appear in person within three business days if there is a change 27 In addition to the periodic in-person appearances, an individual must appear in person within three business days if there is a change
in information included in the registry or 21 days if they intend to travel outside the United States. See 42 Pa.Cons.stat.ann. in information included in the registry or 21 days if they intend to travel outside the United States. See 42 Pa.Cons.stat.ann.
9799.15(g), 9799.15(i). 9799.15(g), 9799.15(i).
28 In addition to the verification of information and photograph requirements, a sexually violent predator must also verify he or she is in 28 In addition to the verification of information and photograph requirements, a sexually violent predator must also verify he or she is in
compliance with the counseling requirements of 9799.36. See 42 Pa.Cons.stat.ann. 9799.15(f)(3). compliance with the counseling requirements of 9799.36. See 42 Pa.Cons.stat.ann. 9799.15(f)(3).
or committed individuals - 42 Pa.Cons.Stat.Ann. 9799.15(j). or committed individuals - 42 Pa.Cons.Stat.Ann. 9799.15(j).
4. Commencement of Registration 4. Commencement of Registration
The period of registration commences as follows:29 The period of registration commences as follows:29
Sexually Violent Offenders Sexually Violent Offenders

The registration period commences upon: The registration period commences upon:
1)release from incarceration in a State of county correctional facility;30 1)release from incarceration in a State of county correctional facility;30
2)parole or a sentence of probation; or, 2)parole or a sentence of probation; or,
3)a sentence of state or county intermediate punishment in which the 3)a sentence of state or county intermediate punishment in which the
person is not sentenced to a period of incarceration. person is not sentenced to a period of incarceration.
42 Pa.Cons.Stat.Ann. 9799.15(b)(1)(i)(A). 42 Pa.Cons.Stat.Ann. 9799.15(b)(1)(i)(A).
Juvenile Offenders31 Juvenile Offenders31

The registration period commences upon: The registration period commences upon:
1) release from court-ordered placement in an institution or facility 1) release from court-ordered placement in an institution or facility
pursuant to 42 Pa.Cons.Stat.Ann. 6352(a)(3); or pursuant to 42 Pa.Cons.Stat.Ann. 6352(a)(3); or
2) at the time of disposition if placed on probation or another 2) at the time of disposition if placed on probation or another
disposition not involving out-of-home placement under 42 disposition not involving out-of-home placement under 42
Pa.Cons.Stat.Ann. 6352. Pa.Cons.Stat.Ann. 6352.
42 Pa.Cons.Stat.Ann. 9799.15(b)(1)(ii)(A), (B). 42 Pa.Cons.Stat.Ann. 9799.15(b)(1)(ii)(A), (B).
Out of State Offenders Out of State Offenders

The registration period commences upon the: The registration period commences upon the:
1)establishment of residence, 1)establishment of residence,
2)commencement of employment or 2)commencement of employment or
3)enrollment as a student in this Commonwealth. 3)enrollment as a student in this Commonwealth.
42 Pa.Cons.Stat.Ann. 9799.15(b)(1)(iv). 42 Pa.Cons.Stat.Ann. 9799.15(b)(1)(iv).
5. Tolling 5. Tolling
If recommitted to a federal, state or county correctional institution for a If recommitted to a federal, state or county correctional institution for a
parole violation or sentenced to an additional term of imprisonment, the parole violation or sentenced to an additional term of imprisonment, the
registration requirements are tolled for the period of time in which the registration requirements are tolled for the period of time in which the
individual is, individual is,
1) incarcerated in a federal, state or county correctional institution;32 1) incarcerated in a federal, state or county correctional institution;32
2) subject to a sentence of restrictive intermediate punishment and 2) subject to a sentence of restrictive intermediate punishment and
sentenced to a period of incarceration; sentenced to a period of incarceration;
29 Notwithstanding the provisions of 9799.15, individuals required to register under 9799.13 must initially register under 9799.19. See 29 Notwithstanding the provisions of 9799.15, individuals required to register under 9799.13 must initially register under 9799.19. See
30 Includes release to community correction center or community contract facility. See 42 Pa.Cons.stat.ann. 9799.15(b)(1)(i)(a). 30 Includes release to community correction center or community contract facility. See 42 Pa.Cons.stat.ann. 9799.15(b)(1)(i)(a).
31 But see 9799.15(b)(1)(iii), if the individual is a sexually violent delinquent child, the registration period commences upon transfer to 31 But see 9799.15(b)(1)(iii), if the individual is a sexually violent delinquent child, the registration period commences upon transfer to
outpatient treatment pursuant to 42 Pa.Cons.stat.ann. 6401.1. outpatient treatment pursuant to 42 Pa.Cons.stat.ann. 6401.1.
32 Excludes a community contract facility or community corrections center - 42 Pa.Cons.stat.ann. 9799.15(C)(1)(i). 32 Excludes a community contract facility or community corrections center - 42 Pa.Cons.stat.ann. 9799.15(C)(1)(i).
3)committed to an institution or facility set forth in 42 Pa.Cons. 3)committed to an institution or facility set forth in 42 Pa.Cons.
Stat.Ann. 6352(a)(3) that provides the individual with 24 hour Stat.Ann. 6352(a)(3) that provides the individual with 24 hour
per day supervision and care; per day supervision and care;
4) committed to and receiving involuntary inpatient treatment in 4) committed to and receiving involuntary inpatient treatment in
the State-owned facility or unit set forth in Chapter 64 or; the State-owned facility or unit set forth in Chapter 64 or;
5) incarcerated in a federal correctional institution33 5) incarcerated in a federal correctional institution33
42 Pa.Cons.Stat.Ann. 9799.15(c). 42 Pa.Cons.Stat.Ann. 9799.15(c).
Individuals required to register may be subject to prosecution for failure Individuals required to register may be subject to prosecution for failure
to register under 18 Pa.Cons.Stat.Ann. 4915.1 if the individual fails to to register under 18 Pa.Cons.Stat.Ann. 4915.1 if the individual fails to
comply with the registration mandates under Sections 9799.15, 9799.19, comply with the registration mandates under Sections 9799.15, 9799.19,
or 9799.25. or 9799.25.
7. Relevant Case Law 7. Relevant Case Law
Validity: No Ex Post Facto Violation Validity: No Ex Post Facto Violation
Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999): Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999):
Registration provisions of Megans Law I did not constitute Registration provisions of Megans Law I did not constitute
punishment for purposes of federal and state constitutional punishment for purposes of federal and state constitutional
provisions prohibiting ex post facto laws. The lifetime registration provisions prohibiting ex post facto laws. The lifetime registration
was not an ex post facto violation because registration requirements was not an ex post facto violation because registration requirements
are designed to help ensure the safety of the public, not to punish are designed to help ensure the safety of the public, not to punish
an offender. See also Commonwealth v. Ackley, 58 A.3d 1284, 1286- an offender. See also Commonwealth v. Ackley, 58 A.3d 1284, 1286-
1287 (Pa. Super. 2012), appeal denied, --- Pa. ---, 70 A.3d 808 (2013). 1287 (Pa. Super. 2012), appeal denied, --- Pa. ---, 70 A.3d 808 (2013).
Commonwealth v. Fleming, 801 A.2d 1234 (Pa. Super. 2002), Commonwealth v. Fleming, 801 A.2d 1234 (Pa. Super. 2002),
appeal denied, 588 Pa. 776 (2006): Application of new lifetime appeal denied, 588 Pa. 776 (2006): Application of new lifetime
registration provisions of Megans Law II, even though Megans Law I registration provisions of Megans Law II, even though Megans Law I
was in effect at the time the defendant committed the offense which was in effect at the time the defendant committed the offense which
required a ten-year registration period, did not violate prohibition required a ten-year registration period, did not violate prohibition
against ex post facto clause. against ex post facto clause.
Federal Court - The U.S. Supreme Court held that the registration Federal Court - The U.S. Supreme Court held that the registration
requirement under the federal Adam Walsh Act is nonpunitive, and requirement under the federal Adam Walsh Act is nonpunitive, and
its retroactive application does not violate the Ex Post Facto Clause. its retroactive application does not violate the Ex Post Facto Clause.
Smith v. Doe, 538 U.S. 84, 105-106, 123 S.Ct. 1140, 1154, 155 L.Ed.2d. Smith v. Doe, 538 U.S. 84, 105-106, 123 S.Ct. 1140, 1154, 155 L.Ed.2d.
164 (2003). From Smith, the courts must apply a two-prong analysis. 164 (2003). From Smith, the courts must apply a two-prong analysis.
The first prong of this test requires examination of whether the General The first prong of this test requires examination of whether the General
Assemblys intent was punitive. If the intent were punitive, the statute Assemblys intent was punitive. If the intent were punitive, the statute
constitutes punishment. If the intent is civil and non-punitive, the constitutes punishment. If the intent is civil and non-punitive, the
second prong of the test applies, which requires examining whether second prong of the test applies, which requires examining whether
33 Excludes a community contract facility or community corrections center - 42 Pa.Cons.stat.ann. 9799.15(C)(1)(v). 33 Excludes a community contract facility or community corrections center - 42 Pa.Cons.stat.ann. 9799.15(C)(1)(v).
the statute is so punitive either in purpose or effect as to negate the statute is so punitive either in purpose or effect as to negate
[Congresss] intention to deem it civil. 538 U.S. at 92. [Congresss] intention to deem it civil. 538 U.S. at 92.
Commonwealth v. McDonough, 96 A.3d 1067 (Pa. Super. 2014): Commonwealth v. McDonough, 96 A.3d 1067 (Pa. Super. 2014):
Following the defendants conviction of indecent assault as a Following the defendants conviction of indecent assault as a
second-degree misdemeanor, he was sentenced to one to two years second-degree misdemeanor, he was sentenced to one to two years
incarceration and to register for 15-years as a sex offender under incarceration and to register for 15-years as a sex offender under
SORNA (he was not classified as a SVP). On appeal, the defendant SORNA (he was not classified as a SVP). On appeal, the defendant
argued (1) the evidence was insufficient; (2) that the registration argued (1) the evidence was insufficient; (2) that the registration
provisions of SORNA are unconstitutional because the maximum provisions of SORNA are unconstitutional because the maximum
penalty was only two years but his registration period is 15 years; penalty was only two years but his registration period is 15 years;
and (3) that the registration requirements of SORNA are not civil in and (3) that the registration requirements of SORNA are not civil in
nature because they include restrictions and requirements which, nature because they include restrictions and requirements which,
if violated, can result in imprisonment. Relying upon Megans Law if violated, can result in imprisonment. Relying upon Megans Law
cases from the Pennsylvania Supreme Court in Commonwealth v. cases from the Pennsylvania Supreme Court in Commonwealth v.
Gaffney, 557 Pa. 327, 733 A.2d 616 (1999) and the Superior Court Gaffney, 557 Pa. 327, 733 A.2d 616 (1999) and the Superior Court
in Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004), the in Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004), the
Court in McDonough held the registration requirements of SORNA Court in McDonough held the registration requirements of SORNA
were collateral consequences of the actual sentence and not punitive. were collateral consequences of the actual sentence and not punitive.
Therefore, it denied relief on the second two issues. Therefore, it denied relief on the second two issues.
Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014): Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014):
Application of the new 25-year sex offender registration requirement Application of the new 25-year sex offender registration requirement
under SORNA to the defendant did not violate prohibition against under SORNA to the defendant did not violate prohibition against
ex post facto clause. Because of the exact wording of SORNA states ex post facto clause. Because of the exact wording of SORNA states
that it shall not be construed as punitive the Superior Court held that it shall not be construed as punitive the Superior Court held
that the first prong of the analysis under Smith v. Doe was satisfied. that the first prong of the analysis under Smith v. Doe was satisfied.
Therefore, the Superior Court went on to review the seven-factor Therefore, the Superior Court went on to review the seven-factor
test from Kennedy v. MendozaMartinez, 372 U.S. 144, 83 S.Ct. test from Kennedy v. MendozaMartinez, 372 U.S. 144, 83 S.Ct.
554, 9 L.Ed.2d 644 (1963) to determine whether the effects of the 554, 9 L.Ed.2d 644 (1963) to determine whether the effects of the
statute are sufficiently punitive to override the legislatures preferred statute are sufficiently punitive to override the legislatures preferred
categorization. Although the Superior Court found the first factor categorization. Although the Superior Court found the first factor
of the Kennedy test weighed in favor of finding that SORNA was of the Kennedy test weighed in favor of finding that SORNA was
punitive, the remaining six factors did not. Therefore, the Superior punitive, the remaining six factors did not. Therefore, the Superior
Court held that the ex post facto clause of the federal constitution did Court held that the ex post facto clause of the federal constitution did
not prohibit the retroactive application of the 25-year sex offender not prohibit the retroactive application of the 25-year sex offender
registration requirement to the defendant under SORNA. registration requirement to the defendant under SORNA.
Plea Withdrawals Plea Withdrawals
Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399 (2008): the Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399 (2008): the
Pennsylvania Supreme Court held once again that the sex offender Pennsylvania Supreme Court held once again that the sex offender
registration requirements under Megans Law II were collateral registration requirements under Megans Law II were collateral
consequences of the defendants nolo contendere plea, and therefore consequences of the defendants nolo contendere plea, and therefore
the defendant was not entitled to withdraw his plea if the trial court the defendant was not entitled to withdraw his plea if the trial court
failed to inform, or even misinformed the defendant, regarding failed to inform, or even misinformed the defendant, regarding
the registration requirements of the conviction. The registration the registration requirements of the conviction. The registration
requirements are a collateral and not direct consequence of the plea, requirements are a collateral and not direct consequence of the plea,
and a defendants lack of knowledge of these collateral consequences and a defendants lack of knowledge of these collateral consequences
does not undermine the validity of the plea: does not undermine the validity of the plea:
Because the Megans Law registration requirements, of Because the Megans Law registration requirements, of
whatever duration, are matters collateral to Appellants plea, whatever duration, are matters collateral to Appellants plea,
the Superior Court correctly concluded that in accepting the Superior Court correctly concluded that in accepting
Appellants plea, the trial court need not have advised Appellants plea, the trial court need not have advised
Appellant as to the length of the registration requirement, Appellant as to the length of the registration requirement,
and that any misunderstanding as to the duration of the and that any misunderstanding as to the duration of the
registration requirement was not a basis for a post-sentence registration requirement was not a basis for a post-sentence
withdrawal of the plea. withdrawal of the plea.
Enforcement of Plea Agreement Enforcement of Plea Agreement
Commonwealth v. Cheeseboro, 91 A.3d 714 (Pa. Super. 2014): The Commonwealth v. Cheeseboro, 91 A.3d 714 (Pa. Super. 2014): The
Pennsylvania State Police, not content with plea agreements entered Pennsylvania State Police, not content with plea agreements entered
in the trial court, which held that defendant-appellees were not in the trial court, which held that defendant-appellees were not
required to register as sexual offenders under SORNA, appealed to the required to register as sexual offenders under SORNA, appealed to the
Superior Court. In an Opinion Per Curiam which consolidated seventy- Superior Court. In an Opinion Per Curiam which consolidated seventy-
three separate appeals, the Superior Court ruled that the Pennsylvania three separate appeals, the Superior Court ruled that the Pennsylvania
State Police does not have standing to challenge plea agreements State Police does not have standing to challenge plea agreements
adopted by the trial court and entered into by the defendants and the adopted by the trial court and entered into by the defendants and the
Commonwealth. The defendant-appellees entered into the negotiated Commonwealth. The defendant-appellees entered into the negotiated
plea agreements with the Commonwealth, before the effective date of plea agreements with the Commonwealth, before the effective date of
SORNA, wherein it was agreed that they would either not be subject SORNA, wherein it was agreed that they would either not be subject
to sexual offender registration or be subject to a reduced period of to sexual offender registration or be subject to a reduced period of
registration under the prior law. The Superior Court held that the registration under the prior law. The Superior Court held that the
state police had limited authority under the registration law: state police had limited authority under the registration law:
PSP was not expressly granted broad authority and PSP was not expressly granted broad authority and
discretionary powers under SORNA. Unlike the Uniform discretionary powers under SORNA. Unlike the Uniform
Firearms Act . . . which provides PSP with a determinative role Firearms Act . . . which provides PSP with a determinative role
as to whether an applicant is prohibited from receiving or as to whether an applicant is prohibited from receiving or
possessing a firearm, PSPs role under SORNA may be viewed possessing a firearm, PSPs role under SORNA may be viewed
as more ministerial in nature than adjudicative. as more ministerial in nature than adjudicative.
91 A.3d at 721. 91 A.3d at 721.
Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014): Appellant Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014): Appellant
could seek enforcement of a nolo contendere plea agreement on could seek enforcement of a nolo contendere plea agreement on
charges of indecent assault and related charges when he was promised charges of indecent assault and related charges when he was promised
a ten-year registration period under Megans Law III but received a ten-year registration period under Megans Law III but received
a 25-year registration period under SORNA. Although other factual a 25-year registration period under SORNA. Although other factual
developments prevented the defendant from receiving the benefit developments prevented the defendant from receiving the benefit
of the plea agreement, the Superior Court adopted the rationale of the plea agreement, the Superior Court adopted the rationale
from Commonwealth v. Hainesworth (see below) and found that from Commonwealth v. Hainesworth (see below) and found that
enforcement was a possible remedy. enforcement was a possible remedy.
Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013) Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013)
(en banc): The Superior Court enforced a negotiated plea agreement (en banc): The Superior Court enforced a negotiated plea agreement
that did not require the defendant to register under Megans Law III that did not require the defendant to register under Megans Law III
despite enactment of new provisions which would have required despite enactment of new provisions which would have required
registration. The dispositive question was whether registration registration. The dispositive question was whether registration
was a term of the bargain struck by the parties. The Superior Court was a term of the bargain struck by the parties. The Superior Court
examined the record, and found the terms of the plea agreement were examined the record, and found the terms of the plea agreement were
set forth and included a discussion of the fact that the offenses to set forth and included a discussion of the fact that the offenses to
which the defendant was pleading guilty did not require registration which the defendant was pleading guilty did not require registration
and supervision as a sex offender. and supervision as a sex offender.
Ineffective Assistance Claim Ineffective Assistance Claim
Commonwealth v. Lippert, 85 A.3d 1095 (Pa. Super. 2014): Commonwealth v. Lippert, 85 A.3d 1095 (Pa. Super. 2014):
Appellant was entitled to an evidentiary hearing on his claim of Appellant was entitled to an evidentiary hearing on his claim of
ineffective assistance of counsel when he was allegedly advised to ineffective assistance of counsel when he was allegedly advised to
plead nolo contendere to indecent assault in May 2012, and told that plead nolo contendere to indecent assault in May 2012, and told that
he would not have to register as a sexual offender, but SORNA had he would not have to register as a sexual offender, but SORNA had
been enacted in December 2011 making it a Tier I sexual offense that been enacted in December 2011 making it a Tier I sexual offense that
requires 15 year registration. requires 15 year registration.
Retroactive Application Retroactive Application
Coppolino v. Noonan, --- A.3d ----, 2014 WL 5140043 Coppolino v. Noonan, --- A.3d ----, 2014 WL 5140043
(Pa.Cmwlth. 2014): The defendant, upon his conviction at the time (Pa.Cmwlth. 2014): The defendant, upon his conviction at the time
Megans Law III was in effect, was subject to lifetime registration, Megans Law III was in effect, was subject to lifetime registration,
of which he was in compliance. Approximately five months after of which he was in compliance. Approximately five months after
he completed his sentence, which included incarceration followed he completed his sentence, which included incarceration followed
by probation, SORNA was enacted which required more detailed by probation, SORNA was enacted which required more detailed
and stringent registration mandates that Megans Law III. (1) and stringent registration mandates that Megans Law III. (1)
The Commonwealth Court found that SORNA is not overbroad. The Commonwealth Court found that SORNA is not overbroad.
(2) In relation to the reporting and registration requirements, the (2) In relation to the reporting and registration requirements, the
Commonwealth Court applied the two-prong analysis from Smith Commonwealth Court applied the two-prong analysis from Smith
v. Doe, 538 U.S. 84, 105-106, 123 S.Ct. 1140, 1154, 155 L.Ed.2d. 164 v. Doe, 538 U.S. 84, 105-106, 123 S.Ct. 1140, 1154, 155 L.Ed.2d. 164
(2003). The first prong of this test requires examination of whether (2003). The first prong of this test requires examination of whether
the General Assemblys intent was punitive. If the intent were punitive, the General Assemblys intent was punitive. If the intent were punitive,
the statute constitutes punishment. The Commonwealth Court found the statute constitutes punishment. The Commonwealth Court found
the legislative intent to be non-punitive. In relation to the second the legislative intent to be non-punitive. In relation to the second
prong of the test, Coppolino argued that SORNA contains must more prong of the test, Coppolino argued that SORNA contains must more
rigorous reporting requirements. The Commonwealth Court reviewed rigorous reporting requirements. The Commonwealth Court reviewed
those provisions of SORNA that had not been already deemed non- those provisions of SORNA that had not been already deemed non-
punitive by the Pennsylvania Supreme Court in its review of earlier punitive by the Pennsylvania Supreme Court in its review of earlier
versions of Megans Law, and made determinations as to whether the versions of Megans Law, and made determinations as to whether the
new provisions were punitive or not: new provisions were punitive or not:
l quarterly in-person verification: non-punitive; l quarterly in-person verification: non-punitive;

l expanded disclosure, including the reporting of the l expanded disclosure, including the reporting of the
convicted sex offenders internet aliases: non-punitive; convicted sex offenders internet aliases: non-punitive;
l palm prints and DNA samples: non-punitive; l palm prints and DNA samples: non-punitive;
l Ex Post Facto Violation - in-person updates punitive. As l Ex Post Facto Violation - in-person updates punitive. As
applied to an individual convicted under a prior version of Megans applied to an individual convicted under a prior version of Megans
Law, because it involves under SORNA a substantial infringement of Law, because it involves under SORNA a substantial infringement of
a fundamental right to freely travel, the requirement for in-person a fundamental right to freely travel, the requirement for in-person
updates violates the constitutional prohibition against ex post facto updates violates the constitutional prohibition against ex post facto
laws. Therefore, 42 Pa.Cons.Stat.Ann. 9799.15(g), i.e., for the laws. Therefore, 42 Pa.Cons.Stat.Ann. 9799.15(g), i.e., for the
defendant to appear in person at an approved registration site defendant to appear in person at an approved registration site
was severed and unenforceable with regard to individuals convicted was severed and unenforceable with regard to individuals convicted
prior to the enactment of SORNA. prior to the enactment of SORNA.
Commonwealth v. Seese, 319 MDA 2013 (Pa. Super. 2014): in an Commonwealth v. Seese, 319 MDA 2013 (Pa. Super. 2014): in an
unpublished memorandum decision, the Superior Court concluded unpublished memorandum decision, the Superior Court concluded
that the appellant was not subject to registration because SORNA, that the appellant was not subject to registration because SORNA,
pursuant to 42 Pa.Cons.Stat.Ann. 9799.13(3.1)(ii)(A), removed the pursuant to 42 Pa.Cons.Stat.Ann. 9799.13(3.1)(ii)(A), removed the
application of registration to a charge of Invasion of Privacy under application of registration to a charge of Invasion of Privacy under
18 Pa.Cons.Stat.Ann. 7507.1 for an individual convicted between 18 Pa.Cons.Stat.Ann. 7507.1 for an individual convicted between
January 23, 2005 and December 19, 2012. January 23, 2005 and December 19, 2012.
Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004): Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004):
Date of offense, guilty plea, or sentencing is not dispositive when Date of offense, guilty plea, or sentencing is not dispositive when
determining whether new Megans Law legislation applies to a determining whether new Megans Law legislation applies to a
particular defendant. As long as the defendant remains in custody of particular defendant. As long as the defendant remains in custody of
correctional authorities serving any portion of his original sentence, correctional authorities serving any portion of his original sentence,
Megans Law II registration requirements will apply to that defendant. Megans Law II registration requirements will apply to that defendant.
Commonwealth v. Miller, 787 A.2d 1036 (Pa. Super. 2001), appeal Commonwealth v. Miller, 787 A.2d 1036 (Pa. Super. 2001), appeal
denied, 568 Pa. 735, 798 A.2d 1288 (2002): The appellant was denied, 568 Pa. 735, 798 A.2d 1288 (2002): The appellant was
sentenced in Hawaii to six months imprisonment to be followed by sentenced in Hawaii to six months imprisonment to be followed by
three years supervised release. During the period of his supervised three years supervised release. During the period of his supervised
release he relocated to Pennsylvania. Held that the Megans Law II release he relocated to Pennsylvania. Held that the Megans Law II
registration requirement applied to appellant the crime was an registration requirement applied to appellant the crime was an
equivalent offense of a Megans Law offense in Pennsylvania, and equivalent offense of a Megans Law offense in Pennsylvania, and
the appellant, even though he had pleaded guilty in Hawaii prior to the appellant, even though he had pleaded guilty in Hawaii prior to
Megans Law II enactment, still had to comply with the registration Megans Law II enactment, still had to comply with the registration
because there is no violation of any ex post facto provision in requiring because there is no violation of any ex post facto provision in requiring
registration when the acts underlying an individuals conviction registration when the acts underlying an individuals conviction
occurred prior to the effective date of the registration requirements. occurred prior to the effective date of the registration requirements.
Recidivist Provision Recidivist Provision
A.S. v. Pennsylvania State Police, 87 A.3d 914 (Pa. Cmwlth. 2014): A.S. v. Pennsylvania State Police, 87 A.3d 914 (Pa. Cmwlth. 2014):
in a rare decision by the Commonwealth Court regarding sex offender in a rare decision by the Commonwealth Court regarding sex offender
registration, a split en banc panel decided to narrowly construe the registration, a split en banc panel decided to narrowly construe the
recidivist provision of Megans Law II and held that the conduct of recidivist provision of Megans Law II and held that the conduct of
which the defendant/petitioner had admitted stemmed from a which the defendant/petitioner had admitted stemmed from a
single course of events rather than multiple incidents which would single course of events rather than multiple incidents which would
have required lifetime registration. Basically, the defendant had have required lifetime registration. Basically, the defendant had
consensual sex with a sixteen year old and convinced the minor to consensual sex with a sixteen year old and convinced the minor to
take photographs of herself engaging in the sexual acts. He also used take photographs of herself engaging in the sexual acts. He also used
the minors digital camera to photograph the two engaging in sexual the minors digital camera to photograph the two engaging in sexual
relations. relations.
G. Registration Procedures G. Registration Procedures
Registration procedures are enumerated in: Registration procedures are enumerated in:
- 42 Pa.Cons.Stat.Ann. 9799.15, - 42 Pa.Cons.Stat.Ann. 9799.15,

- 42 Pa.Cons.Stat.Ann. 9799.19, and - 42 Pa.Cons.Stat.Ann. 9799.19, and
- 42 Pa.Cons.Stat.Ann. 9799.20. - 42 Pa.Cons.Stat.Ann. 9799.20.
Various entities have numerous responsibilities regarding Various entities have numerous responsibilities regarding
notification and registration. The Pennsylvania State Police, notification and registration. The Pennsylvania State Police,
the court with jurisdiction over the sexual offender, or other the court with jurisdiction over the sexual offender, or other
appropriate officials, institutions, or agencies must: appropriate officials, institutions, or agencies must:
inform the individual required to register of the registration inform the individual required to register of the registration
duties; duties;
obtained a form, signed by the individual, acknowledging that obtained a form, signed by the individual, acknowledging that
the duty to register has been explained and is understood by the duty to register has been explained and is understood by
the offender; and the offender; and
collect required registration information and forward the collect required registration information and forward the
information to the Pennsylvania State Police.34 information to the Pennsylvania State Police.34
1. When Offender Must Initially Register 1. When Offender Must Initially Register
(a) If sentenced prior to the effective date of the statute (December 20, (a) If sentenced prior to the effective date of the statute (December 20,
2012) and individual was: 2012) and individual was:
incarcerated within the Commonwealth or by a Federal incarcerated within the Commonwealth or by a Federal
Court on effective date of this section, Court on effective date of this section,
then registration is required before being then registration is required before being
released at: released at:
a. Expiration of sentence; a. Expiration of sentence;
b. Parole; b. Parole;
c. Admission to state or county restrictive intermediate c. Admission to state or county restrictive intermediate
punishment or work release facility; or, punishment or work release facility; or,
d. Admission to special supervised probation d. Admission to special supervised probation
42 Pa.Cons.Stat.Ann. 9799.19(b)(1) 42 Pa.Cons.Stat.Ann. 9799.19(b)(1)
serving county intermediate punishment that is restorative serving county intermediate punishment that is restorative
on effective date of this section, on effective date of this section,
then registration is required within 48 hours of then registration is required within 48 hours of
the effective date of the statute. the effective date of the statute.
42 Pa.Cons.Stat.Ann. 9799.19(c) 42 Pa.Cons.Stat.Ann. 9799.19(c)
serving a county probation sentence, on effective date of serving a county probation sentence, on effective date of
this section, this section,
42 Pa.Cons.Stat.Ann. 9799.19(e.1)(1) 42 Pa.Cons.Stat.Ann. 9799.19(e.1)(1)
serving a Federal probation sentence for a sexually violent serving a Federal probation sentence for a sexually violent
offense on effective date of this section, offense on effective date of this section,
continuing to serve a sentence of county parole on effective continuing to serve a sentence of county parole on effective
date of this section, date of this section,
then the appropriate office of probation and then the appropriate office of probation and
parole serving the county shall register the parole serving the county shall register the
individual within 48 hours of the effective date individual within 48 hours of the effective date
of the statute. of the statute.
continuing to serve a sentence of State parole on effective continuing to serve a sentence of State parole on effective
date of this section, date of this section,
the Pennsylvania Board of Probation and Parole the Pennsylvania Board of Probation and Parole
shall register the individual within 48 hours of shall register the individual within 48 hours of
being supervised by the Commonwealth under Interstate being supervised by the Commonwealth under Interstate
Compact for Adult Offenders on effective date of this Compact for Adult Offenders on effective date of this
section, then registration is required within 48 hours of section, then registration is required within 48 hours of
42 Pa.Cons.Stat.Ann. 9799.19(f)(2) 42 Pa.Cons.Stat.Ann. 9799.19(f)(2)
a juvenile offender subject to the courts jurisdiction a juvenile offender subject to the courts jurisdiction
under section 6352 and is on probation or is otherwise under section 6352 and is on probation or is otherwise
supervised,35 then the individual must provide the supervised,35 then the individual must provide the
required information to the chief juvenile probation required information to the chief juvenile probation
officer within 30 days of the effective date of the statute. officer within 30 days of the effective date of the statute.
42 Pa.Cons.Stat.Ann. 9799.19(h)(2) 42 Pa.Cons.Stat.Ann. 9799.19(h)(2)
a juvenile offender subject to court-ordered placement in a juvenile offender subject to court-ordered placement in
an institution or facility with 24-hour supervision, then the an institution or facility with 24-hour supervision, then the
chief juvenile probation officer shall notify the director chief juvenile probation officer shall notify the director
of the institution or facility and the Pennsylvania State of the institution or facility and the Pennsylvania State
Police within 10 days of the effective date of the statute. Police within 10 days of the effective date of the statute.
a sexually violent delinquent child receiving involuntary a sexually violent delinquent child receiving involuntary
treatment in a State-owned facility or under Chapter 64,36 treatment in a State-owned facility or under Chapter 64,36
then a designated agent of the facility shall facilitate then a designated agent of the facility shall facilitate
the collection of the information as directed by the the collection of the information as directed by the
Pennsylvania State Police. Pennsylvania State Police.
(b) If sentenced on or after the effective date of the statute (December (b) If sentenced on or after the effective date of the statute (December
20, 2012) and individual is: 20, 2012) and individual is:
sentenced to a county or State correctional facility, then sentenced to a county or State correctional facility, then
the individual shall immediately report to the Office the individual shall immediately report to the Office
of Probation and Parole serving that county for of Probation and Parole serving that county for
registration. registration.
42 Pa.Cons.Stat.Ann. 9799.19(b.1)(1) 42 Pa.Cons.Stat.Ann. 9799.19(b.1)(1)
sentenced to county intermediate punishment, which is sentenced to county intermediate punishment, which is
either restorative or restrictive, then the individual shall either restorative or restrictive, then the individual shall
register within 48 hours of sentencing. register within 48 hours of sentencing.
42 Pa.Cons.Stat.Ann. 9799.19(d)(1)&(2) 42 Pa.Cons.Stat.Ann. 9799.19(d)(1)&(2)
35 Includes placement in a foster family home or another residential setting which provides the individual with less than 24-hour-per-day 35 Includes placement in a foster family home or another residential setting which provides the individual with less than 24-hour-per-day
supervision and care. 42 Pa.Cons.stat.ann. 9799.19(h)(2). supervision and care. 42 Pa.Cons.stat.ann. 9799.19(h)(2).
36 Relates to the involuntary treatment of sexually violent persons. 42 Pa.Cons.stat.ann. 6403. 36 Relates to the involuntary treatment of sexually violent persons. 42 Pa.Cons.stat.ann. 6403.
sentenced to county probation, sentenced to county probation,

then the individual shall register within 48 then the individual shall register within 48
hours of sentencing. hours of sentencing.
42 Pa.Cons.Stat.Ann. 9799.19(e) 42 Pa.Cons.Stat.Ann. 9799.19(e)
being supervised by the Commonwealth under Interstate being supervised by the Commonwealth under Interstate
Compact for Adult Offenders, Compact for Adult Offenders,
then the individual must provide registry then the individual must provide registry
information to the appropriate supervising information to the appropriate supervising
official for inclusion into the registry. official for inclusion into the registry.
42 Pa.Cons.Stat.Ann. 9799.19(f)(1) 42 Pa.Cons.Stat.Ann. 9799.19(f)(1)
a juvenile offender adjudicated delinquent, a juvenile offender adjudicated delinquent,

then the individual shall provide the information then the individual shall provide the information
to the juvenile probation officer at the time of to the juvenile probation officer at the time of
disposition37 or at the time of adjudication if the disposition37 or at the time of adjudication if the
court intends to transfer the juveniles case to court intends to transfer the juveniles case to
the county of residence. the county of residence.
a sexually violent delinquent child committed to involuntary a sexually violent delinquent child committed to involuntary
treatment under chapter 64, treatment under chapter 64,
then registration is required at the time of then registration is required at the time of
commitment. commitment.
(c) If convicted or adjudicated delinquent outside of the (c) If convicted or adjudicated delinquent outside of the
Commonwealth, Commonwealth,
then the individual shall register within 3 business days then the individual shall register within 3 business days
of establishing residence, commencing employment, of establishing residence, commencing employment,
or commencing enrollment as a student within or commencing enrollment as a student within
42 Pa.Cons.Stat.Ann. 9799.19(i)(1)&(2) 42 Pa.Cons.Stat.Ann. 9799.19(i)(1)&(2)
(d) If convicted of a sexually violent offense and incarcerated in a (d) If convicted of a sexually violent offense and incarcerated in a
Federal correctional institution or supervised by Federal probation Federal correctional institution or supervised by Federal probation
authorities, authorities,
the individual shall register within 3 business days the individual shall register within 3 business days
of establishing residence, commencing employment of establishing residence, commencing employment
or commencing enrollment as a student within or commencing enrollment as a student within
42 Pa.Cons.Stat.Ann. 9799.19(i)(3) 42 Pa.Cons.Stat.Ann. 9799.19(i)(3)
37 However, if the adjudication of delinquency occurs in any county other than the juveniles county of residence and the court intends to 37 However, if the adjudication of delinquency occurs in any county other than the juveniles county of residence and the court intends to
transfer the case for disposition in the county of residence, then registration is required at the time of adjudication. 42 Pa.Cons.stat.ann. transfer the case for disposition in the county of residence, then registration is required at the time of adjudication. 42 Pa.Cons.stat.ann.
9799.19(h)(1)(i)(b). 9799.19(h)(1)(i)(b).
2. Information to be Provided38 2. Information to be Provided38
Name. Primary or given name, regardless of the context.39 Name. Primary or given name, regardless of the context.39
Internet Identification - Designation used by the individual Internet Identification - Designation used by the individual
for purposes of routing or self-identification in Internet for purposes of routing or self-identification in Internet
communications or postings. communications or postings.
Telephonic Identification - Telephone numbers and any other Telephonic Identification - Telephone numbers and any other
designations used by the individual for purposes of routing or designations used by the individual for purposes of routing or
self-identification in telephonic communications. self-identification in telephonic communications.
Social Security Number - Valid social security number and Social Security Number - Valid social security number and
purported social security number, if applicable. purported social security number, if applicable.
Address. Address of every residence and intended residence Address. Address of every residence and intended residence
within the Commonwealth and outside the Commonwealth within the Commonwealth and outside the Commonwealth
and the location at which mail is received.40 and the location at which mail is received.40
Temporary Lodging information. Individual must include Temporary Lodging information. Individual must include
specific length of time and dates of lodging. specific length of time and dates of lodging.
Immigration Documents. Documents establishing Immigration Documents. Documents establishing

immigration status, including passports. immigration status, including passports.
Employer Information. Name and address of employment or Employer Information. Name and address of employment or
where the individual will be employed.41 where the individual will be employed.41
Occupational License. Occupational and professional Occupational License. Occupational and professional
licensing information, including type of license and license licensing information, including type of license and license
number. number.
Student information. The individual must provide the name Student information. The individual must provide the name
and address of school where he or she is a student or will be a and address of school where he or she is a student or will be a
student. student.
38 42 Pa.Cons.stat.ann. 9799.16(b)(1). 38 42 Pa.Cons.stat.ann. 9799.16(b)(1).

39 Includes: an alias, nickname, pseudonym, ethnic or tribal name, and any designations or monikers used for self-identification in Internet 39 Includes: an alias, nickname, pseudonym, ethnic or tribal name, and any designations or monikers used for self-identification in Internet
communications or postings. 42 Pa.Cons.stat.ann. 9799.16(b)(1). communications or postings. 42 Pa.Cons.stat.ann. 9799.16(b)(1).
40 Transient Offenders - The following requirements apply for transient offenders until the transient establishes residence: 40 Transient Offenders - The following requirements apply for transient offenders until the transient establishes residence:
The transient shall provide information about the temporary habitat or other temporary place of abode or dwelling, including The transient shall provide information about the temporary habitat or other temporary place of abode or dwelling, including
but not limited to a homeless shelter or park. Additionally, the transient shall provide a list of planned destinations, including but not limited to a homeless shelter or park. Additionally, the transient shall provide a list of planned destinations, including
those outside the Commonwealth, as well as places where the transient eats, frequents, and engages in leisure activities. those outside the Commonwealth, as well as places where the transient eats, frequents, and engages in leisure activities.
If the transient is designated a sexually violent predator, the transient shall state whether he is in compliance with 9799.36 If the transient is designated a sexually violent predator, the transient shall state whether he is in compliance with 9799.36
counseling requirements. counseling requirements.
41 If the individual is not employed in a fixed workplace, he or she must provide general travel routes and general areas where he or she 41 If the individual is not employed in a fixed workplace, he or she must provide general travel routes and general areas where he or she
works. 42 Pa.Cons.stat.ann. 9799.16(b)(9). works. 42 Pa.Cons.stat.ann. 9799.16(b)(9).
Motor Vehicle Information. Information relating to all Motor Vehicle Information. Information relating to all
motor vehicles owned or operated by the individual, including motor vehicles owned or operated by the individual, including
watercraft and aircraft. The individual must provide the watercraft and aircraft. The individual must provide the
following information: following information:
license plate number license plate number

registration or another identification number registration or another identification number
address where the vehicle is stored address where the vehicle is stored
individuals operating license or other individuals operating license or other
identification card identification card
Date of birth. Individual must provide actual and purported Date of birth. Individual must provide actual and purported
date of birth. date of birth.
Acknowledgment form. The individual must sign a form Acknowledgment form. The individual must sign a form
acknowledging his obligations under the statute. acknowledging his obligations under the statute.
3. Notification of Changes42 3. Notification of Changes42
In addition to in-person periodic appearances, offenders must appear In addition to in-person periodic appearances, offenders must appear
in person at an approved registration site within 3 business days of any in person at an approved registration site within 3 business days of any
change in: change in:
Name or alias; Name or alias;
Residence; Residence;
Employment or address of employment; Employment or address of employment;
Student enrollment status; Student enrollment status;
Telephone number (including addition of a new telephone Telephone number (including addition of a new telephone
number) number)
Motor vehicle information that was required at initial Motor vehicle information that was required at initial
registration or a change in the address at which it is stored; registration or a change in the address at which it is stored;
Temporary lodging; Temporary lodging;
Designations used in internet communications or postings; Designations used in internet communications or postings;
Information relating to an occupational or professional license. Information relating to an occupational or professional license.
42 42 Pa.Cons.stat.ann. 9799.15(g). 42 42 Pa.Cons.stat.ann. 9799.15(g).
4. Enforcement 4. Enforcement
Enforcement procedures are specified in 42 Pa.Cons.Stat.Ann. 9799.22. Enforcement procedures are specified in 42 Pa.Cons.Stat.Ann. 9799.22.
(a) In General. When an individual fails to comply with 9799.19 (a) In General. When an individual fails to comply with 9799.19
(relating to initial registration, 9799.21 (relating to penalty) or (relating to initial registration, 9799.21 (relating to penalty) or
9799.36 (relating to counseling of SVPs), the Pennsylvania State 9799.36 (relating to counseling of SVPs), the Pennsylvania State
Police shall: Police shall:
Locate and arrest the individual, in cooperation with the district Locate and arrest the individual, in cooperation with the district
attorney; 42 Pa.Cons.Stat.Ann. 9799.22(a)(1), attorney; 42 Pa.Cons.Stat.Ann. 9799.22(a)(1),
or or
notify the municipal police department where the individual notify the municipal police department where the individual
has a residence, is transient, is employed, or is enrolled as has a residence, is transient, is employed, or is enrolled as
a student; the municipal police shall locate and arrest the a student; the municipal police shall locate and arrest the
individual in cooperation with the district attorney. 42 Pa.Cons. individual in cooperation with the district attorney. 42 Pa.Cons.
Stat.Ann. 9799.22(a)(2). Stat.Ann. 9799.22(a)(2).
(b) When an individual cannot be located, the Pennsylvania State (b) When an individual cannot be located, the Pennsylvania State
Police shall: Police shall:
enter information that the individual cannot be located on the enter information that the individual cannot be located on the
internet website, the state registry, the National Sex Offender internet website, the state registry, the National Sex Offender
Registry, and National Crime Information Center43 Registry, and National Crime Information Center43
and and
notify the U.S. Marshalls Service. 42 Pa.Cons.Stat.Ann. notify the U.S. Marshalls Service. 42 Pa.Cons.Stat.Ann.
9799.22(b). 9799.22(b).
(c) Notice from another jurisdiction. When another jurisdiction (c) Notice from another jurisdiction. When another jurisdiction
notifies the Pennsylvania State Police that an individual intends to notifies the Pennsylvania State Police that an individual intends to
establish status that requires him to register in the Commonwealth, establish status that requires him to register in the Commonwealth,
and the individual fails to comply with the registration and the individual fails to comply with the registration
requirements, the Pennsylvania State Police must notify the other requirements, the Pennsylvania State Police must notify the other
jurisdiction.44 42 Pa.Cons.Stat.Ann. 9799.22(c). jurisdiction.44 42 Pa.Cons.Stat.Ann. 9799.22(c).
(d) If the individual refuses to provide information. The (d) If the individual refuses to provide information. The
appropriate officials must inform the Pennsylvania State Police so appropriate officials must inform the Pennsylvania State Police so
that they may comply with this subsection. 42 Pa.Cons.Stat.Ann. that they may comply with this subsection. 42 Pa.Cons.Stat.Ann.
9799.22(d). 9799.22(d).
5. Court Notification and Classification Requirements 5. Court Notification and Classification Requirements
The notices that a trial court must provide at the time of sentencing (or The notices that a trial court must provide at the time of sentencing (or
43 If a warrant is issued pursuant to this subsection, the police department executing the warrant shall provide information to the NCIC 43 If a warrant is issued pursuant to this subsection, the police department executing the warrant shall provide information to the NCIC
Wanted Person File to reflect that a warrant has been issued. 9799.22(b)(4). Wanted Person File to reflect that a warrant has been issued. 9799.22(b)(4).
44 This subsection also applies to transient offenders. 44 This subsection also applies to transient offenders.
of disposition in a juvenile case) are specified in 42 Pa.Cons.Stat.Ann. of disposition in a juvenile case) are specified in 42 Pa.Cons.Stat.Ann.
9799.23. 9799.23.
In summary, the trial court, at the time of sentencing, must In summary, the trial court, at the time of sentencing, must
inform the sexual offender of: inform the sexual offender of:
1) the duty to register; 1) the duty to register;

2) the duty to register in accordance with the SORNA 2) the duty to register in accordance with the SORNA
provisions for period of registration, the registry, the provisions for period of registration, the registry, the
time for initial registration, and verification of address; time for initial registration, and verification of address;
3) the duty to attend counseling; 3) the duty to attend counseling;
4) the duty to register if any of the following occur: change 4) the duty to register if any of the following occur: change
in address (including becoming transient), change in in address (including becoming transient), change in
employment, or change in student enrollment. employment, or change in student enrollment.
Additionally, 42 Pa.Cons.Stat.Ann. 9799.20 lists the entities that have a Additionally, 42 Pa.Cons.Stat.Ann. 9799.20 lists the entities that have a
duty to implement many of the provisions of the Act: duty to implement many of the provisions of the Act:
9799.20. Duty to inform 9799.20. Duty to inform
In order to implement the provisions of section 9799.19 In order to implement the provisions of section 9799.19
(relating to initial registration), as appropriate, the (relating to initial registration), as appropriate, the
Pennsylvania State Police, the court having jurisdiction Pennsylvania State Police, the court having jurisdiction
over the sexual offender, the chief juvenile probation over the sexual offender, the chief juvenile probation
officer of the court and the appropriate official of the officer of the court and the appropriate official of the
Pennsylvania Board of Probation and Parole, county Pennsylvania Board of Probation and Parole, county
office of probation and parole, the Department of Public office of probation and parole, the Department of Public
Welfare or a State or county correctional institution Welfare or a State or county correctional institution
shall: shall:
(1) Inform the individual required to register of the (1) Inform the individual required to register of the
individuals duties under this subchapter. individuals duties under this subchapter.
(2) Require the individual to read and sign a form (2) Require the individual to read and sign a form
stating that the duty to register has been explained stating that the duty to register has been explained
and that the individual understands the registration and that the individual understands the registration
requirement. requirement.
(3) Collect the information required under section (3) Collect the information required under section
9799.16(b) and (c) (relating to registry) and forward 9799.16(b) and (c) (relating to registry) and forward
the information to the Pennsylvania State Police for the information to the Pennsylvania State Police for
inclusion in the registry as set forth in this subchapter.45 inclusion in the registry as set forth in this subchapter.45
(a) Duty to inform. At the time of sentencing,46 the court must (a) Duty to inform. At the time of sentencing,46 the court must
46 Or, in the case of juvenile offenders, at the time of disposition; and of commitment, in the case of sexually violent delinquent children. 46 Or, in the case of juvenile offenders, at the time of disposition; and of commitment, in the case of sexually violent delinquent children.
specifically inform sexual offenders of the provisions of this specifically inform sexual offenders of the provisions of this
subchapter, including: subchapter, including:
the duty to register under this subchapter, namely sections, the duty to register under this subchapter, namely sections,
- 9799. 15 (relating to period of registration); - 9799. 15 (relating to period of registration);
- 9799.16(b) (relating to registry); - 9799.16(b) (relating to registry);
- 9799.19 (relating to initial registration); - 9799.19 (relating to initial registration);
- 9799.25 (relating to verification by sexual - 9799.25 (relating to verification by sexual
offenders and Pennsylvania State Police); and, offenders and Pennsylvania State Police); and,
if applicable, the duty to attend counseling in accordance with if applicable, the duty to attend counseling in accordance with
sections, sections,
- 9799.36 (relating to counseling of sexually violent - 9799.36 (relating to counseling of sexually violent
predators predators
- 6404.2(g)(relating to the duration of outpatient - 6404.2(g)(relating to the duration of outpatient
commitment and review); and, commitment and review); and,
the duty to register with authorities in another jurisdiction the duty to register with authorities in another jurisdiction
within three (3) business days of, within three (3) business days of,
- Changes in residence, including, - Changes in residence, including,

- commencement of residence, - commencement of residence,
- change of residence - change of residence
- termination of residence or failure to maintain a - termination of residence or failure to maintain a
residence (thus making the offender transient) residence (thus making the offender transient)
- Change in employment status, including, - Change in employment status, including,

- commencement of employment - commencement of employment
- change in location or entity of employment - change in location or entity of employment
- termination of employment - termination of employment
- Change in student enrollment status, including, - Change in student enrollment status, including,
- enrollment as a student - enrollment as a student
- change in enrollment status - change in enrollment status
- termination of enrollment - termination of enrollment
(b) Duty to order the information to be provided under 9799.16(c). (b) Duty to order the information to be provided under 9799.16(c).
The court must order that the fingerprints, palm prints, DNA sample The court must order that the fingerprints, palm prints, DNA sample
and photograph of the sexual offender shall be provided to the and photograph of the sexual offender shall be provided to the
Pennsylvania State Police upon sentencing. Pennsylvania State Police upon sentencing.
1. Acknowledgement form 1. Acknowledgement form
The court must require the offender to read and sign a The court must require the offender to read and sign a
form stating that these duties have been explained. form stating that these duties have been explained.
If the offender is incapable of speaking, reading, or If the offender is incapable of speaking, reading, or
writing the English language, the court shall certify writing the English language, the court shall certify
the duty to register was explained and the offender the duty to register was explained and the offender
indicated an understanding of his or her duties. indicated an understanding of his or her duties.
2. Tier Classification47 2. Tier Classification47
The court must specifically classify the individual as one The court must specifically classify the individual as one
of the following, of the following,
i) Tier I offender i) Tier I offender

ii) Tier II offender ii) Tier II offender
iii) Tier III offender iii) Tier III offender
iv) sexually violent predator iv) sexually violent predator
v) juvenile offender v) juvenile offender
vi) sexually violent delinquent child vi) sexually violent delinquent child
3. Mandatory Registration. 3. Mandatory Registration.
The following applies, The following applies,
the courts failure to provide information, the courts failure to provide information,
to correctly inform an offender of his or her to correctly inform an offender of his or her
obligations or registration requirements shall obligations or registration requirements shall
not relieve the offender from the requirements not relieve the offender from the requirements
of this subchapter; of this subchapter;
the court has no authority to relieve a sexual the court has no authority to relieve a sexual
offender from the duty to register under this offender from the duty to register under this
subchapter or to modify the requirements of this subchapter or to modify the requirements of this
subchapter.48 subchapter.48
H. Assessments H. Assessments
Responsibility of Trial Court Responsibility of Trial Court
After conviction but before sentencing, the sentencing court After conviction but before sentencing, the sentencing court
must: must:
1) Order an assessment by the State Sexual Offenders Assessment 1) Order an assessment by the State Sexual Offenders Assessment
Board Board
47 The Pennsylvania Commission on Sentencing shall establish procedures to enable courts to classify sexual offenders as provided in this 47 The Pennsylvania Commission on Sentencing shall establish procedures to enable courts to classify sexual offenders as provided in this
subsection. See 42 Pa.Cons.stat.ann. 9799.40. subsection. See 42 Pa.Cons.stat.ann. 9799.40.
48 Except as provided in 9799.17 (relating to termination of period of registration for juvenile offenders). 48 Except as provided in 9799.17 (relating to termination of period of registration for juvenile offenders).
2) Forward the order to the administrative officer of the Board 2) Forward the order to the administrative officer of the Board
within 10 days of conviction within 10 days of conviction
3) Hold a hearing (in accordance with 9799.24(e)) prior 3) Hold a hearing (in accordance with 9799.24(e)) prior
to sentencing, upon the filing of a praecipe by the district to sentencing, upon the filing of a praecipe by the district
attorney attorney
4) Determine, prior to sentencing, whether the Commonwealth 4) Determine, prior to sentencing, whether the Commonwealth
has proved by clear and convincing evidence that the defendant has proved by clear and convincing evidence that the defendant
is a sexually violent predator is a sexually violent predator
1. Order for assessment 1. Order for assessment

After conviction but before sentencing, a court must order an individual After conviction but before sentencing, a court must order an individual
convicted of a sexually violent offense to be assessed by the board. convicted of a sexually violent offense to be assessed by the board.
This order must be sent to the administrative officer of the board within This order must be sent to the administrative officer of the board within
ten days of the date of conviction for the sexually violent offense. ten days of the date of conviction for the sexually violent offense.
2. Factors to be considered in assessment 2. Factors to be considered in assessment

After the board receives the courts order for an assessment, a member of After the board receives the courts order for an assessment, a member of
the board as designated by the administrative officer of the board must the board as designated by the administrative officer of the board must
conduct an assessment of the individual to determine if the individual conduct an assessment of the individual to determine if the individual
should be classified as a sexually violent predator. should be classified as a sexually violent predator.
The assessments should include, but are not limited to, an examination of The assessments should include, but are not limited to, an examination of
1) Facts of the current offense, including: 1) Facts of the current offense, including:
- whether the offense involved multiple victims; - whether the offense involved multiple victims;
- whether the individual exceeded the means necessary - whether the individual exceeded the means necessary
to achieve the offense; to achieve the offense;
- the nature of the sexual contact with the victim; - the nature of the sexual contact with the victim;
- relationship of the individual to the victim; - relationship of the individual to the victim;
- the age of the victim; - the age of the victim;
- whether the offense included a display of unusual - whether the offense included a display of unusual
cruelty by the individual during the commission of the cruelty by the individual during the commission of the
crime; crime;
- the mental capacity of the victim. - the mental capacity of the victim.
2) Prior offense history, including: 2) Prior offense history, including:
- the individuals prior criminal record; - the individuals prior criminal record;
- whether the individual completed any prior sentences; - whether the individual completed any prior sentences;
- whether the individual participated in available - whether the individual participated in available
programs for sexual offenders. programs for sexual offenders.
3) Characteristics of the individual, including: 3) Characteristics of the individual, including:
- age; - age;
- use of illegal drugs; - use of illegal drugs;
- any mental illness, mental disability or mental - any mental illness, mental disability or mental
abnormality; abnormality;
- behavioral characteristics that contribute to the - behavioral characteristics that contribute to the
individuals conduct. individuals conduct.
4) Factors that are supported in a sexual offender assessment field 4) Factors that are supported in a sexual offender assessment field
as criteria reasonably related to the risk of re-offense. as criteria reasonably related to the risk of re-offense.
3. Release of information 3. Release of information

42 Pa.Cons.Stat.Ann. 9799.24(c) 42 Pa.Cons.Stat.Ann. 9799.24(c)
All state, county and local agencies, offices or entities in the Commonwealth, All state, county and local agencies, offices or entities in the Commonwealth,
including juvenile probation officers, must provide copies of records and including juvenile probation officers, must provide copies of records and
information as requested by the board in connection with the court- information as requested by the board in connection with the court-
ordered assessment and the assessment requested by the Pennsylvania ordered assessment and the assessment requested by the Pennsylvania
Board of Probation and Parole or the assessment of a delinquent child Board of Probation and Parole or the assessment of a delinquent child
under section 6358 (relating to assessment of delinquent children by the under section 6358 (relating to assessment of delinquent children by the
State Sexual Offenders Assessment Board). State Sexual Offenders Assessment Board).
4. Submission of report by Board 4. Submission of report by Board

42 Pa.Cons.Stat.Ann. 9799.24(d) 42 Pa.Cons.Stat.Ann. 9799.24(d)
The board has 90 days from the date of conviction of the individual to The board has 90 days from the date of conviction of the individual to
submit a written report containing its assessment to the district attorney. submit a written report containing its assessment to the district attorney.
5. Summary of Offense 5. Summary of Offense

42 Pa.Cons.Stat.Ann. 9799.24(d.1) 42 Pa.Cons.Stat.Ann. 9799.24(d.1)
The board shall prepare a description of the offense or offenses that The board shall prepare a description of the offense or offenses that
trigger the application of this subchapter to include, but not be limited to: trigger the application of this subchapter to include, but not be limited to:
1) a concise narrative of the individuals conduct; 1) a concise narrative of the individuals conduct;
2) whether the individual was a minor; 2) whether the individual was a minor;
3) the manner of weapon or physical force used or threatened; 3) the manner of weapon or physical force used or threatened;
4) if the offense involved unauthorized entry into a room or vehicle 4) if the offense involved unauthorized entry into a room or vehicle
occupied by the victim; occupied by the victim;
5) if the offense was part of a course or pattern involving multiple 5) if the offense was part of a course or pattern involving multiple
incidents or victims; incidents or victims;
6) previous instances in which the individual was determined guilty 6) previous instances in which the individual was determined guilty
of an offense subject to this subchapter or of a crime of violence of an offense subject to this subchapter or of a crime of violence
as defined in section 9714 (relating to sentences for second and as defined in section 9714 (relating to sentences for second and
subsequent offenses). subsequent offenses).
6. Hearing 6. Hearing
42 Pa.Cons.Stat.Ann. 9799.24(e) 42 Pa.Cons.Stat.Ann. 9799.24(e)
(a) Prehearing Procedure The assessment hearing is scheduled by (a) Prehearing Procedure The assessment hearing is scheduled by
the filing of a praecipe by the district attorney. the filing of a praecipe by the district attorney.
Upon filing the praecipe, the district attorney must serve Upon filing the praecipe, the district attorney must serve
a copy of the praecipe and board report on the defense a copy of the praecipe and board report on the defense
counsel. 9799.24(e)(1). counsel. 9799.24(e)(1).
The individual and the district attorney are given notice of The individual and the district attorney are given notice of
the hearing and an opportunity to be heard, the right to call the hearing and an opportunity to be heard, the right to call
factual witnesses, the right to call expert witnesses, and the factual witnesses, the right to call expert witnesses, and the
opportunity for cross-examination. 9799.24(e)(2). opportunity for cross-examination. 9799.24(e)(2).
The individual has a right to counsel and to have a lawyer The individual has a right to counsel and to have a lawyer
appointed to represent him if he cannot afford one. appointed to represent him if he cannot afford one.
9799.24(e)(2). 9799.24(e)(2).
(b) Alternative Expert Assessment - If the individual requests (b) Alternative Expert Assessment - If the individual requests
another expert assessment, he shall provide a copy of the another expert assessment, he shall provide a copy of the
expert assessment to the district attorney prior to the hearing. expert assessment to the district attorney prior to the hearing.
9799.24(e)(2). 9799.24(e)(2).
(c) Burden of Proof At the hearing prior to sentencing, the court (c) Burden of Proof At the hearing prior to sentencing, the court
must determine whether the Commonwealth has proven by clear must determine whether the Commonwealth has proven by clear
and convincing evidence that the individual is a sexually violent and convincing evidence that the individual is a sexually violent
predator. 9799.24(e)(3). predator. 9799.24(e)(3).
(d) Courts Determination - A copy of the order containing the (d) Courts Determination - A copy of the order containing the
determination of the court must be immediately submitted to the determination of the court must be immediately submitted to the
individual, district attorney, Pennsylvania Board of Probation and individual, district attorney, Pennsylvania Board of Probation and
Parole, Department of Corrections and Pennsylvania State Police. Parole, Department of Corrections and Pennsylvania State Police.
9799.24(e)(4). 9799.24(e)(4).
(e) SVP Determination Following Sentencing Although the statute (e) SVP Determination Following Sentencing Although the statute
requires that the SVP assessment and determination be conducted requires that the SVP assessment and determination be conducted
after conviction but prior to sentencing, that requirement may after conviction but prior to sentencing, that requirement may
be waived. Commonwealth v. Whanger, 30 A.3d 1212 (Pa. be waived. Commonwealth v. Whanger, 30 A.3d 1212 (Pa.
Super. 2011), appeal denied, 615 Pa. 777, 42 A.3d 293 (2012). In Super. 2011), appeal denied, 615 Pa. 777, 42 A.3d 293 (2012). In
Whanger, the defendant signed a form which explained the SVP Whanger, the defendant signed a form which explained the SVP
assessment procedure and waived the requirement that it occur assessment procedure and waived the requirement that it occur
before sentencing, and then did not preserve his objection to the before sentencing, and then did not preserve his objection to the
late assessment by way of post-sentence motions or objections at late assessment by way of post-sentence motions or objections at
the time of the SVP hearing. An objection to a late SVP determination the time of the SVP hearing. An objection to a late SVP determination
must be preserved for appellate review like any other objection. must be preserved for appellate review like any other objection.
7. Presentence Investigation 7. Presentence Investigation

42 Pa.Cons.Stat.Ann. 9799.24(f) 42 Pa.Cons.Stat.Ann. 9799.24(f)
Copies of the board assessment must be provided to the agency preparing Copies of the board assessment must be provided to the agency preparing
the presentence investigation. the presentence investigation.
8. Parole Assessment 8. Parole Assessment

42 Pa.Cons.Stat.Ann. 9799.24(g) 42 Pa.Cons.Stat.Ann. 9799.24(g)
The Pennsylvania Board of Probation and Parole may request the board The Pennsylvania Board of Probation and Parole may request the board
conduct an assessment and submit a report to them prior to considering conduct an assessment and submit a report to them prior to considering
an offender or sexually violent predator for parole. an offender or sexually violent predator for parole.
9. Delinquent Children 9. Delinquent Children

42 Pa.Cons.Stat.Ann. 9799.24(h) 42 Pa.Cons.Stat.Ann. 9799.24(h)
The probation officer must notify the board 90 days prior to the 20th The probation officer must notify the board 90 days prior to the 20th
birthday of the child of the status of the delinquent child, together with birthday of the child of the status of the delinquent child, together with
the location of the facility where a child is committed pursuant to section the location of the facility where a child is committed pursuant to section
6352 (relating to disposition of delinquent child), after having been found 6352 (relating to disposition of delinquent child), after having been found
delinquent for an act of sexual violence, which if committed by an adult delinquent for an act of sexual violence, which if committed by an adult
would be a violation of would be a violation of
18 Pa.Cons.Stat.Ann. 3121 (Rape) 18 Pa.Cons.Stat.Ann. 3121 (Rape)

18 Pa.Cons.Stat.Ann. 3123 (Involuntary Deviate Sexual) 18 Pa.Cons.Stat.Ann. 3123 (Involuntary Deviate Sexual)
18 Pa.Cons.Stat.Ann. 3124.1 (Sexual Assault) 18 Pa.Cons.Stat.Ann. 3124.1 (Sexual Assault)
18 Pa.Cons.Stat.Ann. 3125 (Aggravated Indecent Assault) 18 Pa.Cons.Stat.Ann. 3125 (Aggravated Indecent Assault)
18 Pa.Cons.Stat.Ann. 3126 (Indecent Assault) 18 Pa.Cons.Stat.Ann. 3126 (Indecent Assault)
18 Pa.Cons.Stat.Ann 4302 (Incest) 18 Pa.Cons.Stat.Ann 4302 (Incest)
Consistent with the provisions of 42 Pa.Cons.Stat.Ann. 9799.24(b), Consistent with the provisions of 42 Pa.Cons.Stat.Ann. 9799.24(b),
the Board must conduct an assessment of the child, which must include the Board must conduct an assessment of the child, which must include
the Boards determination of whether or not the child is in need of the Boards determination of whether or not the child is in need of
commitment due to a mental abnormality as defined in Section 6402 commitment due to a mental abnormality as defined in Section 6402
(relating to definitions) or a personality disorder, either of which results (relating to definitions) or a personality disorder, either of which results
in serious difficulty in controlling sexually violent behavior and provide in serious difficulty in controlling sexually violent behavior and provide
a report to the court within the time frames set forth in Section 6358(c). a report to the court within the time frames set forth in Section 6358(c).
The probation office must assist the Board in obtaining access to the child The probation office must assist the Board in obtaining access to the child
and any record or information as requested by the Board in connection and any record or information as requested by the Board in connection
with the assessment. with the assessment.
10. Appellate Review 10. Appellate Review
Challenges to a defendants designation as a sexually violent predator Challenges to a defendants designation as a sexually violent predator
(SVP) are not cognizable issues under the PCRA because they do not (SVP) are not cognizable issues under the PCRA because they do not
pertain to the underlying conviction or sentence. Commonwealth v. pertain to the underlying conviction or sentence. Commonwealth v.
Bundy, 96 A.3d 390, 394 (Pa. Super. 2014); Commonwealth v. Masker, Bundy, 96 A.3d 390, 394 (Pa. Super. 2014); Commonwealth v. Masker,
34 A.3d 841 (Pa. Super. 2011) (en banc), appeal denied, 616 Pa. 635, 47 34 A.3d 841 (Pa. Super. 2011) (en banc), appeal denied, 616 Pa. 635, 47
A.3d 846 (2012). This exclusion from the jurisdiction of a PCRA petition A.3d 846 (2012). This exclusion from the jurisdiction of a PCRA petition
includes issues centering on the retroactive application of registration includes issues centering on the retroactive application of registration
laws. Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014). laws. Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014).
In Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014), the defendant In Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014), the defendant
filed a petition for habeas corpus and/or seeking enforcement of a plea filed a petition for habeas corpus and/or seeking enforcement of a plea
agreement, in which he alleged that a specific term of his plea agreement agreement, in which he alleged that a specific term of his plea agreement
was that he would receive a shorter reporting period. The trial court was that he would receive a shorter reporting period. The trial court
dismissed the petition pursuant to PCRA review. The Superior Court dismissed the petition pursuant to PCRA review. The Superior Court
reversed, and stated: reversed, and stated:
We note that the within petition is not an attack on Appellants We note that the within petition is not an attack on Appellants
sentence, nor is he alleging that he is innocent of the offenses sentence, nor is he alleging that he is innocent of the offenses
of which he was convicted. Appellant is not asserting that his of which he was convicted. Appellant is not asserting that his
conviction or sentence resulted from a violation of the Constitution, conviction or sentence resulted from a violation of the Constitution,
ineffective assistance of counsel, an unlawfully-induced plea, ineffective assistance of counsel, an unlawfully-induced plea,
obstruction by government officials of his right to appeal, newly- obstruction by government officials of his right to appeal, newly-
discovered evidence, an illegal sentence, or a lack of jurisdiction. discovered evidence, an illegal sentence, or a lack of jurisdiction.
42 Pa.C.S. 9543(a)(2). In short, we agree with Appellant that 42 Pa.C.S. 9543(a)(2). In short, we agree with Appellant that
his claim does not fall within the scope of the PCRA and should his claim does not fall within the scope of the PCRA and should
not be reviewed under the standard applicable to the dismissal not be reviewed under the standard applicable to the dismissal
of PCRA petitions. See Commonwealth v. Masker, 34 A.3d 841, of PCRA petitions. See Commonwealth v. Masker, 34 A.3d 841,
843844 (Pa.Super.2011) ( en banc ) (holding that a challenge to 843844 (Pa.Super.2011) ( en banc ) (holding that a challenge to
the classification of the defendant as a SVP is not a challenge to the classification of the defendant as a SVP is not a challenge to
the conviction or sentence, and therefore not cognizable under the the conviction or sentence, and therefore not cognizable under the
PCRA). Furthermore, it is not subject to the PCRAs time constraints, PCRA). Furthermore, it is not subject to the PCRAs time constraints,
and hence, we have jurisdiction to entertain it. Commonwealth v. and hence, we have jurisdiction to entertain it. Commonwealth v.
Deaner, 779 A.2d 578, 580 (Pa.Super.2001). Deaner, 779 A.2d 578, 580 (Pa.Super.2001).
Commonwealth v. Partee, 86 A.3d 245, 247 (Pa. Super. 2014). Commonwealth v. Partee, 86 A.3d 245, 247 (Pa. Super. 2014).
I. Verification by sexual offenders and Pennsylvania State Police I. Verification by sexual offenders and Pennsylvania State Police
42 Pa. Cons. Stat. Ann. 9799.25 42 Pa. Cons. Stat. Ann. 9799.25
1. Periodic Verification. 1. Periodic Verification.
Notwithstanding 42 Pa.Cons.Stat.Ann. 9799.19 (relating to initial registration) Notwithstanding 42 Pa.Cons.Stat.Ann. 9799.19 (relating to initial registration)
and in accordance with 9799.15(a)(relating to period of registration), and in accordance with 9799.15(a)(relating to period of registration),
sexual offenders shall verify the information provided in 9799.16(b) and be sexual offenders shall verify the information provided in 9799.16(b) and be
photographed, as follows: photographed, as follows:
a) Annual appearances: a) Annual appearances:

Tier I offenders Tier I offenders
individuals required to register under 9799.13(7.1) individuals required to register under 9799.13(7.1)
b) Semiannual appearances: b) Semiannual appearances:

Tier II offenders Tier II offenders
c) Quarterly appearances: c) Quarterly appearances:

Tier III offenders Tier III offenders
sexually violent predators sexually violent predators
juvenile offenders juvenile offenders
sexually violent delinquent child sexually violent delinquent child
d) Monthly appearances: d) Monthly appearances:

transient offenders transient offenders
2. Deadline. 2. Deadline.
If the offender fails to appear within ten (10) days of the date designated If the offender fails to appear within ten (10) days of the date designated
by the Pennsylvania State Police, he or she may be subject to prosecution by the Pennsylvania State Police, he or she may be subject to prosecution
under 18 Pa.Cons.Stat.Ann. 4915.1 (relating to failure to comply with under 18 Pa.Cons.Stat.Ann. 4915.1 (relating to failure to comply with
registration requirements). registration requirements).
J. Victim Notification J. Victim Notification

1. Duty to Inform the Victim of SVP. 1. Duty to Inform the Victim of SVP.
When a sexually violent predator or sexually violent delinquent child When a sexually violent predator or sexually violent delinquent child
initially registers under 42 Pa.Cons.Stat.Ann. 9799.19 or changes their initially registers under 42 Pa.Cons.Stat.Ann. 9799.19 or changes their
residence, employment, or student enrollment status under 9799.15(g) residence, employment, or student enrollment status under 9799.15(g)
(2), (3) or (4), the municipal police, or the Pennsylvania State Police, if (2), (3) or (4), the municipal police, or the Pennsylvania State Police, if
there is no municipal police, must provide written notice to the victim there is no municipal police, must provide written notice to the victim
within 72 hours. The notice shall contain the following information within 72 hours. The notice shall contain the following information
about the sexually violent predator or the sexually violent delinquent about the sexually violent predator or the sexually violent delinquent
child: child:
Name Name
Residence (including information required by transient Residence (including information required by transient
offenders) offenders)
Address of employment Address of employment
Address of the school where the offender is enrolled. Address of the school where the offender is enrolled.
However, a victim my request termination of this notification with a However, a victim my request termination of this notification with a
written statement releasing that agency from the duty to comply. See 42 written statement releasing that agency from the duty to comply. See 42
Pa.Cons.Stat.Ann. 9799.26(a)(2). Pa.Cons.Stat.Ann. 9799.26(a)(2).
2. Victim Notification of Other Sexual Offenders. 2. Victim Notification of Other Sexual Offenders.
For sexual offenders not determined to be a sexually violent predator or For sexual offenders not determined to be a sexually violent predator or
a sexually violent delinquent child, the victim shall be notified under the a sexually violent delinquent child, the victim shall be notified under the
Crime Victims Act.49 See 42 Pa.Cons.Stat.Ann. 9799.26(b). Crime Victims Act.49 See 42 Pa.Cons.Stat.Ann. 9799.26(b).
K. Other Notification (Community Notification) K. Other Notification (Community Notification)

42 Pa. Cons. Stat. Ann. 9799.27 & 9799.37 42 Pa. Cons. Stat. Ann. 9799.27 & 9799.37
1. Residence. 1. Residence.
Written notification of the sexually violent predators residence to be Written notification of the sexually violent predators residence to be
provided by municipality where he lives. See 42 Pa.Cons.Stat.Ann. provided by municipality where he lives. See 42 Pa.Cons.Stat.Ann.
9798(a). 9798(a).
2. Contents of Notice: 2. Contents of Notice:
a) Name of sexually violent predator; a) Name of sexually violent predator;
b) Address of sexually violent predator;50 b) Address of sexually violent predator;50
c) Offense for which he was convicted, sentenced by a court, c) Offense for which he was convicted, sentenced by a court,
adjudicated delinquent or court martialed; adjudicated delinquent or court martialed;
d) Photograph, if available See 42 Pa.Cons.Stat.Ann. 9798(a)(1); d) Photograph, if available See 42 Pa.Cons.Stat.Ann. 9798(a)(1);
49 18 Pa.stat. 11.201. 49 18 Pa.stat. 11.201.

50 The address or addresses at which the sexually violent predator has a residence. If, however, the sexually violent predator has a residence 50 The address or addresses at which the sexually violent predator has a residence. If, however, the sexually violent predator has a residence
as defined in paragraph (2) of the definition of residence set forth in section 9792 (relating to definitions), the notice shall be limited to as defined in paragraph (2) of the definition of residence set forth in section 9792 (relating to definitions), the notice shall be limited to
that set forth in section 9795.2(a)(2)(i)(C) (relating to registration procedures and applicability). that set forth in section 9795.2(a)(2)(i)(C) (relating to registration procedures and applicability).
e) Not to contain any information that might reveal the victims name, e) Not to contain any information that might reveal the victims name,
identity or residence See 42 Pa.Cons.Stat.Ann. 9798(a)(2). identity or residence See 42 Pa.Cons.Stat.Ann. 9798(a)(2).
3. Release of Notice: 3. Release of Notice:
a) The Notice must be provided within 5 days after information of a) The Notice must be provided within 5 days after information of
the sexually violent predators release date and residence has been the sexually violent predators release date and residence has been
received by chief law enforcement officer. See 42 Pa.Cons.Stat. received by chief law enforcement officer. See 42 Pa.Cons.Stat.
Ann. 9798(c)(1). Ann. 9798(c)(1).
Notice provided to: Notice provided to:
i. Neighbors. (Where the sexually violent predator lives in a i. Neighbors. (Where the sexually violent predator lives in a
common interest community, neighbors include unit owners common interest community, neighbors include unit owners
association and residents of the common interest community.) association and residents of the common interest community.)
ii. Verbal notification may be used if written notification ii. Verbal notification may be used if written notification
would delay meeting time requirement. would delay meeting time requirement.
a) Within 7 days after the chief law enforcement officer receives a) Within 7 days after the chief law enforcement officer receives
information regarding the sexually violent predators release date information regarding the sexually violent predators release date
and residence. See 42 Pa.Cons.Stat.Ann. 9798(c)(2) and residence. See 42 Pa.Cons.Stat.Ann. 9798(c)(2)
Notice provided to: Notice provided to:
i. Director of county children and youth service agency of i. Director of county children and youth service agency of
county where SVP resides; county where SVP resides;
ii. Superintendent of each school district and equivalent ii. Superintendent of each school district and equivalent
official for private and parochial schools enrolling students official for private and parochial schools enrolling students
up through grade 12 in the municipality where SVP resides; up through grade 12 in the municipality where SVP resides;
iii. Superintendent of each school district and equivalent iii. Superintendent of each school district and equivalent
official for each private and parochial school located within official for each private and parochial school located within
a one-mile radius of where the SVP resides; a one-mile radius of where the SVP resides;
iv. Licensee of each certified day care center and licensed iv. Licensee of each certified day care center and licensed
preschool program and owner/operator of each registered preschool program and owner/operator of each registered
family day care home in the municipality where the SVP family day care home in the municipality where the SVP
resides; resides;
v. President of each college, university and community college v. President of each college, university and community college
located within 1,000 feet of a SVPs residence. located within 1,000 feet of a SVPs residence.
4. General Public: All information must be available upon request to 4. General Public: All information must be available upon request to
general public. Information may be provided by electronic means. See 42 general public. Information may be provided by electronic means. See 42
Pa.Cons.Stat.Ann. 9798(d) Pa.Cons.Stat.Ann. 9798(d)
5. Interstate Transfers duties of police departments under this section 5. Interstate Transfers duties of police departments under this section
also applies to individuals transferred to Pennsylvania pursuant to the also applies to individuals transferred to Pennsylvania pursuant to the
Interstate Compact for Supervision of Adult Offenders or the Interstate Interstate Compact for Supervision of Adult Offenders or the Interstate
Compact for Juveniles. See 42 Pa.Cons.Stat.Ann. 9798(e) Compact for Juveniles. See 42 Pa.Cons.Stat.Ann. 9798(e)
6. Exemption from Notification Requirement: 6. Exemption from Notification Requirement:

Exemption from notification for certain licensees and their employees Exemption from notification for certain licensees and their employees
there is no duty imposed upon a person licensed under the Real Estate there is no duty imposed upon a person licensed under the Real Estate
Licensing and Registration Act, or an employee thereof, to disclose any Licensing and Registration Act, or an employee thereof, to disclose any
information regarding an individual required to be included in the registry information regarding an individual required to be included in the registry
under this subchapter. See 42 Pa.Cons.Stat.Ann. 9799.37. under this subchapter. See 42 Pa.Cons.Stat.Ann. 9799.37.
L. Public Internet Website L. Public Internet Website

In 2004, the General Assembly found that public service would be enhanced by In 2004, the General Assembly found that public service would be enhanced by
making information available on the Internet and that public access was solely making information available on the Internet and that public access was solely
intended as a means of public protection and not to be punitive. See 42 Pa.Cons. intended as a means of public protection and not to be punitive. See 42 Pa.Cons.
Stat.Ann. 9799(a). Stat.Ann. 9799(a).
SORNA provides that the following information is to be disclosed on the website, SORNA provides that the following information is to be disclosed on the website,
within the guidelines as stated: within the guidelines as stated:
9799.28. Public Internet website 9799.28. Public Internet website

... ...
(b) Required information.--Notwithstanding Chapter 63 (b) Required information.--Notwithstanding Chapter 63

(relating to juvenile matters) and 18 Pa.C.S. Ch. 91 (relating (relating to juvenile matters) and 18 Pa.C.S. Ch. 91 (relating
to criminal history record information), the Internet website to criminal history record information), the Internet website
shall contain the following information regarding an individual shall contain the following information regarding an individual
convicted of a sexually violent offense, a sexually violent convicted of a sexually violent offense, a sexually violent
predator or a sexually violent delinquent child: predator or a sexually violent delinquent child:
(1) Name and aliases. (1) Name and aliases.
(2) Year of birth. (2) Year of birth.
(3) Street address, municipality, county, State and zip code (3) Street address, municipality, county, State and zip code
of residences and intended residences. In the case of an of residences and intended residences. In the case of an
individual convicted of a sexually violent offense, a sexually individual convicted of a sexually violent offense, a sexually
violent predator or a sexually violent delinquent child who violent predator or a sexually violent delinquent child who
fails to establish a residence and is therefore a transient, fails to establish a residence and is therefore a transient,
the Internet website shall contain information about the the Internet website shall contain information about the
transients temporary habitat or other temporary place of transients temporary habitat or other temporary place of
abode or dwelling, including, but not limited to, a homeless abode or dwelling, including, but not limited to, a homeless
shelter or park. In addition, the Internet website shall contain shelter or park. In addition, the Internet website shall contain
a list of places the transient eats, frequents and engages in a list of places the transient eats, frequents and engages in
leisure activities. leisure activities.
of any location at which an individual convicted of a sexually of any location at which an individual convicted of a sexually
violent offense, a sexually violent predator or a sexually violent offense, a sexually violent predator or a sexually
violent delinquent child is enrolled as a student. violent delinquent child is enrolled as a student.
of a fixed location where an individual convicted of a sexually of a fixed location where an individual convicted of a sexually
violent delinquent child is employed. If an individual convicted violent delinquent child is employed. If an individual convicted
of a sexually violent offense, a sexually violent predator or a of a sexually violent offense, a sexually violent predator or a
sexually violent delinquent child is not employed at a fixed sexually violent delinquent child is not employed at a fixed
address, the information shall include general areas of work. address, the information shall include general areas of work.
(6) Current facial photograph of an individual convicted of (6) Current facial photograph of an individual convicted of
a sexually violent offense, a sexually violent predator or a a sexually violent offense, a sexually violent predator or a
sexually violent delinquent child. This paragraph requires, sexually violent delinquent child. This paragraph requires,
if available, the last eight facial photographs taken of the if available, the last eight facial photographs taken of the
individual and the date each photograph was entered into individual and the date each photograph was entered into
the registry. the registry.
(7) Physical description of an individual convicted of a (7) Physical description of an individual convicted of a
sexually violent offense, a sexually violent predator or a sexually violent offense, a sexually violent predator or a
sexually violent delinquent child. sexually violent delinquent child.
(8) License plate number and a description of a vehicle (8) License plate number and a description of a vehicle
owned or operated by an individual convicted of a sexually owned or operated by an individual convicted of a sexually
violent delinquent child. violent delinquent child.
(9) Offense for which an individual convicted of a sexually (9) Offense for which an individual convicted of a sexually
violent delinquent child is registered under this subchapter violent delinquent child is registered under this subchapter
and other sexually violent offenses for which the individual and other sexually violent offenses for which the individual
was convicted. was convicted.
(10) A statement whether an individual convicted of a sexually (10) A statement whether an individual convicted of a sexually
violent delinquent child is in compliance with registration. violent delinquent child is in compliance with registration.
(11) A statement whether the victim is a minor. (11) A statement whether the victim is a minor.
(12) Date on which the individual convicted of a sexually (12) Date on which the individual convicted of a sexually
violent delinquent child is made active within the registry and violent delinquent child is made active within the registry and
date when the individual most recently updated registration date when the individual most recently updated registration
information. information.
(13) Indication as to whether the individual is a sexually (13) Indication as to whether the individual is a sexually
violent predator, sexually violent delinquent child or convicted violent predator, sexually violent delinquent child or convicted
of a Tier I, Tier II or Tier III sexual offense. of a Tier I, Tier II or Tier III sexual offense.
(14) If applicable, indication that an individual convicted of (14) If applicable, indication that an individual convicted of
sexually violent delinquent child is incarcerated or committed sexually violent delinquent child is incarcerated or committed
or is a transient. or is a transient.
(c) Prohibited information.--The public Internet website (c) Prohibited information.--The public Internet website
established under this section shall not contain: established under this section shall not contain:
(1) The identity of any victim. (1) The identity of any victim.
(2) The Social Security number of an individual convicted of (2) The Social Security number of an individual convicted of
sexually violent delinquent child. sexually violent delinquent child.
(3) Any information relating to arrests of an individual (3) Any information relating to arrests of an individual
convicted of a sexually violent offense, a sexually violent convicted of a sexually violent offense, a sexually violent
predator or a sexually violent delinquent child that did not predator or a sexually violent delinquent child that did not
result in conviction. result in conviction.
(4) Travel and immigration document numbers. (4) Travel and immigration document numbers.
(d) (Reserved). (d) (Reserved).
(e) Duration of posting.--The information listed in subsection (e) Duration of posting.--The information listed in subsection
(b) shall be made available on the Internet website unless an (b) shall be made available on the Internet website unless an
individual convicted of a sexually violent offense, a sexually individual convicted of a sexually violent offense, a sexually
violent predator or a sexually violent delinquent child is deceased violent predator or a sexually violent delinquent child is deceased
or is no longer required to register under this subchapter. or is no longer required to register under this subchapter.
The Pennsylvania State Police maintain the Megans Law Website at: The Pennsylvania State Police maintain the Megans Law Website at:
http://www.pameganslaw.state.pa.us/FAQ.aspx http://www.pameganslaw.state.pa.us/FAQ.aspx
M. Immunity for Good Faith Conduct M. Immunity for Good Faith Conduct
The following entities are immune from liability for good faith conduct: The following entities are immune from liability for good faith conduct:
Agents and employees of the Pennsylvania State Police and local law Agents and employees of the Pennsylvania State Police and local law
enforcement agencies. enforcement agencies.
District attorneys and their agents and employees. District attorneys and their agents and employees.
Superintendents, administrators, teachers, employees and volunteers Superintendents, administrators, teachers, employees and volunteers
engaged in the supervision of children of any public, private or engaged in the supervision of children of any public, private or
parochial school. parochial school.
Directors and employees of county children and youth agencies. Directors and employees of county children and youth agencies.
Presidents or similar officers of universities and colleges, including Presidents or similar officers of universities and colleges, including
community colleges. community colleges.
The Pennsylvania Board of Probation and Parole and its agents and The Pennsylvania Board of Probation and Parole and its agents and
employees. employees.
County probation and parole offices and their agents and employees. County probation and parole offices and their agents and employees.
Licensees of certified day-care centers and directors of licensed Licensees of certified day-care centers and directors of licensed
preschool programs and owners and operators of registered family preschool programs and owners and operators of registered family
day-care homes and their agents and employees. day-care homes and their agents and employees.
The Department of Corrections and its agents and employees. The Department of Corrections and its agents and employees.
County correctional facilities and their agents and employees. County correctional facilities and their agents and employees.
The board and its members, agents and employees. The board and its members, agents and employees.
Juvenile probation offices and their agents and employees. Juvenile probation offices and their agents and employees.
The Department of Public Welfare and its agents and employees. The Department of Public Welfare and its agents and employees.
Institutions or facilities set forth in section 6352(a)(3) (relating to Institutions or facilities set forth in section 6352(a)(3) (relating to
disposition of delinquent child) and their agents and employees. disposition of delinquent child) and their agents and employees.
The unit owners association of a common interest community and The unit owners association of a common interest community and
its agents and employees as it relates to distributing information its agents and employees as it relates to distributing information
regarding section 9799.27(b)(1) (relating to other notification). regarding section 9799.27(b)(1) (relating to other notification).
N. Counseling of Sexually Violent Predators N. Counseling of Sexually Violent Predators

1. General Rule 1. General Rule
A sexually violent predator who is not incarcerated is required to attend at A sexually violent predator who is not incarcerated is required to attend at
least monthly counseling sessions in a program approved by the board, and be least monthly counseling sessions in a program approved by the board, and be
financially responsible for all fees assessed form the counseling sessions. The financially responsible for all fees assessed form the counseling sessions. The
board must monitor the individuals compliance with this subsection. See 42 board must monitor the individuals compliance with this subsection. See 42
Pa.Cons.Stat.Ann. 9799.36(a). Pa.Cons.Stat.Ann. 9799.36(a).
2. Designation in another jurisdiction 2. Designation in another jurisdiction
If the individual is designated a sexually violent predator in another jurisdiction If the individual is designated a sexually violent predator in another jurisdiction
and was required to undergo counseling, the individual must undergo counseling and was required to undergo counseling, the individual must undergo counseling
pursuant to this section. See 42 Pa.Cons.Stat.Ann. 9799.36(b). pursuant to this section. See 42 Pa.Cons.Stat.Ann. 9799.36(b).
A sexually violent predator who knowingly fails to attend counseling sessions A sexually violent predator who knowingly fails to attend counseling sessions
as provided in this section is subject to prosecution under 18 Pa.Cons.Stat.Ann. as provided in this section is subject to prosecution under 18 Pa.Cons.Stat.Ann.
4915.1 (relating to failure to comply with registration requirements). See 42 4915.1 (relating to failure to comply with registration requirements). See 42
Pa.Cons.Stat.Ann. 9799.36(c). Pa.Cons.Stat.Ann. 9799.36(c).
O. Photographs and Fingerprinting O. Photographs and Fingerprinting

An individual subject to registration must submit to fingerprinting and An individual subject to registration must submit to fingerprinting and
photographing with the following minimal requirements: photographing with the following minimal requirements:
Fingerprints to be full set of fingerprints and palm prints. Fingerprints to be full set of fingerprints and palm prints.
Photographs to include photographs of the face, scars, marks, tattoos or other Photographs to include photographs of the face, scars, marks, tattoos or other
unique features of the individual. unique features of the individual.
Fingerprints and photographs obtained under this subchapter may be used for Fingerprints and photographs obtained under this subchapter may be used for
this purposes of SORNA and for general enforcement purposes. this purposes of SORNA and for general enforcement purposes.
P. Failure to Comply Statutes P. Failure to Comply Statutes

1. Failure to Comply with registration of sexual offenders 1. Failure to Comply with registration of sexual offenders
An individual who is subject to registration under 42 Pa.Cons.Stat.Ann. 9799.13 An individual who is subject to registration under 42 Pa.Cons.Stat.Ann. 9799.13
commits an offense if he knowingly fails to register, verify his address or be commits an offense if he knowingly fails to register, verify his address or be
photographed, or provide accurate information when registering under: photographed, or provide accurate information when registering under:
2. Failure by Transient 2. Failure by Transient
An individual set forth in 42 Pa.Cons.Stat.Ann. 9799.13 who is a transient An individual set forth in 42 Pa.Cons.Stat.Ann. 9799.13 who is a transient
commits an offense if he knowingly fails to register, verify his location information commits an offense if he knowingly fails to register, verify his location information
or be photographed, or provide accurate information when registering under: or be photographed, or provide accurate information when registering under:
42 Pa.Cons.Stat.Ann. 9799.16(b)(6) 42 Pa.Cons.Stat.Ann. 9799.16(b)(6)
42 Pa.Cons.Stat.Ann. 9799.25(a)(7) 42 Pa.Cons.Stat.Ann. 9799.25(a)(7)
3. Failure to comply with counseling 3. Failure to comply with counseling
An individual required to comply with counseling commits an offense if he An individual required to comply with counseling commits an offense if he
knowingly fails to comply under: knowingly fails to comply under:
42 Pa.Cons.Stat.Ann. 6404.2(g), or 42 Pa.Cons.Stat.Ann. 6404.2(g), or
11.3 DNA DATA AND TESTING 11.3 DNA DATA AND TESTING
A. COMBINED DNA INDEX SYSTEM - CODIS A. COMBINED DNA INDEX SYSTEM - CODIS
CODIS is the software and DNA indexing system created in 1994 by the DNA CODIS is the software and DNA indexing system created in 1994 by the DNA
Identification Act. CODIS stands for Combined DNA Index System. Since its authorization Identification Act. CODIS stands for Combined DNA Index System. Since its authorization
in 1994, the CODIS system has grown to include all 50 states and a number of federal in 1994, the CODIS system has grown to include all 50 states and a number of federal
agencies. CODIS collects DNA profiles provided by local laboratories taken from arrestees, agencies. CODIS collects DNA profiles provided by local laboratories taken from arrestees,
convicted offenders, and forensic evidence found at crime scenes. To participate convicted offenders, and forensic evidence found at crime scenes. To participate
in CODIS, a local laboratory must sign a memorandum of understanding agreeing to in CODIS, a local laboratory must sign a memorandum of understanding agreeing to
adhere to quality standards and submit to audits to evaluate compliance with the federal adhere to quality standards and submit to audits to evaluate compliance with the federal
standards. The United States Supreme Court described the CODIS system in Maryland v. standards. The United States Supreme Court described the CODIS system in Maryland v.
King, 133 S.Ct. 1958, 1968, 186 L.Ed.2d 1 (2013). King, 133 S.Ct. 1958, 1968, 186 L.Ed.2d 1 (2013).
CODIS is defined in Section 2303 of the DNA Detection of Sexual and Violent CODIS is defined in Section 2303 of the DNA Detection of Sexual and Violent
Offenders Act (Pennsylvania DNA Act), as: Offenders Act (Pennsylvania DNA Act), as:
The term is derived from Combined DNA Index System, the The term is derived from Combined DNA Index System, the
Federal Bureau of Investigations national DNA identification Federal Bureau of Investigations national DNA identification
index system that allows the storage and exchange of DNA records index system that allows the storage and exchange of DNA records
submitted by state and local forensic DNA laboratories. submitted by state and local forensic DNA laboratories.
The Pennsylvania DNA Act provides that the Pennsylvania State Police must make The Pennsylvania DNA Act provides that the Pennsylvania State Police must make
arrangements for DNA samples to be stored, analyzed, and classified. 44 Pa.Cons.Stat. arrangements for DNA samples to be stored, analyzed, and classified. 44 Pa.Cons.Stat.
Ann. 2319. Ann. 2319.
As stated above, it stands for Combined DNA Index System, an electronic As stated above, it stands for Combined DNA Index System, an electronic
database which connects DNA laboratories at the local, state, and national levels, and database which connects DNA laboratories at the local, state, and national levels, and
which standardizes the points of comparison, i.e., loci, used in DNA analysis. that allows which standardizes the points of comparison, i.e., loci, used in DNA analysis. that allows
nationwide access to DNA profiles. It operates under a three-tiered DNA Index System nationwide access to DNA profiles. It operates under a three-tiered DNA Index System
Local (LDIS), State (SDIS) and National (NDIS). DNA profiles are uploaded in this Local (LDIS), State (SDIS) and National (NDIS). DNA profiles are uploaded in this
hierarchical sequence: local index to state index to national index. The NDIS contains hierarchical sequence: local index to state index to national index. The NDIS contains
DNA profiles contributed from federal, state, and local laboratories. The SDIS contains DNA profiles contributed from federal, state, and local laboratories. The SDIS contains
DNA profiles collected from the state; and the LDIS is the local repository for DNA profiles. DNA profiles collected from the state; and the LDIS is the local repository for DNA profiles.
Each local laboratory that participates in CODIS has its own local index, and each state Each local laboratory that participates in CODIS has its own local index, and each state
has one state index. The Federal Bureau of Investigation maintains the national index. has one state index. The Federal Bureau of Investigation maintains the national index.
DNA profiles are collected from two different sources and uploaded into the DNA profiles are collected from two different sources and uploaded into the
index systems. The two databases are the Offender Index and the Forensic Index. The index systems. The two databases are the Offender Index and the Forensic Index. The
offender database is comprised of DNA samples taken from convicted offenders who are offender database is comprised of DNA samples taken from convicted offenders who are
required to submit a DNA sample. Each state dictates which crimes require submission required to submit a DNA sample. Each state dictates which crimes require submission
of DNA samples. The forensic database consists of DNA samples taken from crime scenes; of DNA samples. The forensic database consists of DNA samples taken from crime scenes;
these are unknown profiles. Information contained in the index systems is compared, these are unknown profiles. Information contained in the index systems is compared,
which may then generate a hit or match. Two types of matches can occur: evidence-to- which may then generate a hit or match. Two types of matches can occur: evidence-to-
evidence (or forensic) matches and evidence-to-offender (or offender) matches. evidence (or forensic) matches and evidence-to-offender (or offender) matches.
CODIS has been an effective investigative tool in solving crimes, revealing CODIS has been an effective investigative tool in solving crimes, revealing
possible suspects in cold cases, and linking previously unrelated crimes together. As possible suspects in cold cases, and linking previously unrelated crimes together. As
stated above, all 50 states now participate in CODIS, including Pennsylvania. According stated above, all 50 states now participate in CODIS, including Pennsylvania. According
to the FBI CODIS website, as of April 2014, Pennsylvania has added 309,414 offender to the FBI CODIS website, as of April 2014, Pennsylvania has added 309,414 offender
profiles, 12,005 forensic profiles, and has aided in 5,376 investigations. For statistics on profiles, 12,005 forensic profiles, and has aided in 5,376 investigations. For statistics on
the NDIS, see the FBIs CODIS website on the FBIs website, www.fbi.gov. the NDIS, see the FBIs CODIS website on the FBIs website, www.fbi.gov.
B. The Pennsylvania DNA Detection of Sexual and Violent Offenders Act B. The Pennsylvania DNA Detection of Sexual and Violent Offenders Act
DNA Detection of Sexual and Violent Offenders Act (Pennsylvania DNA Act) is DNA Detection of Sexual and Violent Offenders Act (Pennsylvania DNA Act) is
codified in 44 Pa.Cons.Stat.Ann. 2301-2336. codified in 44 Pa.Cons.Stat.Ann. 2301-2336.
1. Responsibilities of the Pennsylvania State Police 1. Responsibilities of the Pennsylvania State Police
the policy management and administration of the State DNA the policy management and administration of the State DNA
identification record system; identification record system;
promulgating rules and regulations to carry out the provisions of promulgating rules and regulations to carry out the provisions of
this chapter; and this chapter; and
providing or liaison with the FBI and other criminal justice agencies providing or liaison with the FBI and other criminal justice agencies
for Pennsylvanias participation in CODIS or in a DNA data base for Pennsylvanias participation in CODIS or in a DNA data base
designated by the State Police. See 44 Pa.Cons.Stat.Ann. 2311. designated by the State Police. See 44 Pa.Cons.Stat.Ann. 2311.
State Police can recommend to the General Assembly inclusion of State Police can recommend to the General Assembly inclusion of
additional offenses for which DNA samples will be taken. See 44 additional offenses for which DNA samples will be taken. See 44
Pa.Cons.Stat.Ann. 2314.51 Pa.Cons.Stat.Ann. 2314.51
State Police is to promulgate as necessary, rules, regulations and State Police is to promulgate as necessary, rules, regulations and
guidelines to implement this chapter, including procedures to be guidelines to implement this chapter, including procedures to be
used in the collection, submission, identification, analysis, storage used in the collection, submission, identification, analysis, storage
and disposition of DNA samples and typing results of DNA samples and disposition of DNA samples and typing results of DNA samples
submitted. See 44 Pa.Cons.Stat.Ann. 2318(a). submitted. See 44 Pa.Cons.Stat.Ann. 2318(a).
C. When DNA Sample Required C. When DNA Sample Required
1. DNA sample is required: 1. DNA sample is required:

From a person convicted or adjudicated delinquent for a felony sex From a person convicted or adjudicated delinquent for a felony sex
offense or other specified offense; or offense or other specified offense; or
From a person who is or remains incarcerated for a felony sex offense From a person who is or remains incarcerated for a felony sex offense
or other specified offense on or after effective date of this Act; or other specified offense on or after effective date of this Act;
Upon intake to a prison, jail, juvenile detention facility or any other Upon intake to a prison, jail, juvenile detention facility or any other
detention facility or institution. detention facility or institution.
2. Mandatory Submission 44 Pa.Cons.Stat.Ann. 2316(d.1). 2. Mandatory Submission 44 Pa.Cons.Stat.Ann. 2316(d.1).
Requirements of this chapter apply regardless of whether a court advises Requirements of this chapter apply regardless of whether a court advises
a person that a DNA sample must be provided to the State DNA Data Base and a person that a DNA sample must be provided to the State DNA Data Base and
State DNA Data Bank as a result of a conviction or adjudication or delinquency. State DNA Data Bank as a result of a conviction or adjudication or delinquency.
Person sentenced to death or life imprisonment without the possibility Person sentenced to death or life imprisonment without the possibility
of parole NOT exempt. of parole NOT exempt.
Any person subject to this chapter who has not provided a DNA sample Any person subject to this chapter who has not provided a DNA sample
51 DNA identification system must be compatible with the procedures established by the FBI, including quality assurance standards for 51 DNA identification system must be compatible with the procedures established by the FBI, including quality assurance standards for
forensic DNA testing laboratories and DNA data basing laboratories and CODIS policies and procedures. See 44 Pa.Cons.stat.ann. forensic DNA testing laboratories and DNA data basing laboratories and CODIS policies and procedures. See 44 Pa.Cons.stat.ann.
2315. 2315.
for any reason, including because of an oversight or error, must provide for any reason, including because of an oversight or error, must provide
a DNA sample for inclusion in the State DNA Data Base and State DNA a DNA sample for inclusion in the State DNA Data Base and State DNA
Data Bank after being notified by authorized law enforcement or Data Bank after being notified by authorized law enforcement or
corrections personnel. corrections personnel.
If a DNA sample is not adequate for any reason, the person must If a DNA sample is not adequate for any reason, the person must
provide another DNA sample for inclusion in the State DNA Data provide another DNA sample for inclusion in the State DNA Data
Base and State DNA Data Bank after being notified by authorized law Base and State DNA Data Bank after being notified by authorized law
enforcement or corrections personnel. enforcement or corrections personnel.
D. Expungement D. Expungement
A person whose DNA record has been included in the data bank may request A person whose DNA record has been included in the data bank may request
expungement on the grounds that expungement on the grounds that
a. the conviction or delinquency adjudication has been reversed and the a. the conviction or delinquency adjudication has been reversed and the
case dismissed OR case dismissed OR
b. the DNA sample, record or profile was included in the State DNA Data b. the DNA sample, record or profile was included in the State DNA Data
Bank or State DNA Data Base by mistake. Bank or State DNA Data Base by mistake.
See 44 Pa.Cons.Stat.Ann. 2321. See 44 Pa.Cons.Stat.Ann. 2321.
State Police must receive a written request for expungement and certified copy State Police must receive a written request for expungement and certified copy
of the final court order reversing and dismissing the conviction or clear and convincing of the final court order reversing and dismissing the conviction or clear and convincing
proof that the sample record or profile was included by mistake before purging all proof that the sample record or profile was included by mistake before purging all
records and identifiable information in the State Data Bank and State Data Base and records and identifiable information in the State Data Bank and State Data Base and
destroying each sample, record and profile from the person. destroying each sample, record and profile from the person.
An incarcerated or previously incarcerated person may not seek expungement An incarcerated or previously incarcerated person may not seek expungement
of a DNA sample, record or profile on the grounds that he was convicted or adjudicated of a DNA sample, record or profile on the grounds that he was convicted or adjudicated
delinquent delinquent
a. for a felony sex offense prior to July 27, 1995 OR a. for a felony sex offense prior to July 27, 1995 OR
b. for one of the other specified offenses prior to the effective b. for one of the other specified offenses prior to the effective
date of the former DNA Act or this chapter date of the former DNA Act or this chapter
E. Prohibition on Disclosure - 44 Pa.Cons.Stat.Ann. 2331 E. Prohibition on Disclosure - 44 Pa.Cons.Stat.Ann. 2331
1. Information in the State DNA Data Bank or State DNA Data Base shall not 1. Information in the State DNA Data Bank or State DNA Data Base shall not
be disclosed in any manner to any person or agency not authorized to be disclosed in any manner to any person or agency not authorized to
receive it knowing that such person or agency is not authorized to receive receive it knowing that such person or agency is not authorized to receive
it. it.
2. No person can obtain individually identifiable DNA information from the 2. No person can obtain individually identifiable DNA information from the
State Data Base or the State DNA Data Bank without authorization to do State Data Base or the State DNA Data Bank without authorization to do
so. so.
F. Criminal Penalties 44 Pa.Cons.Stat.Ann. 2332 F. Criminal Penalties 44 Pa.Cons.Stat.Ann. 2332
1. Any person who by virtue of employment or official position or any 1. Any person who by virtue of employment or official position or any
person contracting to carry out any functions under this chapter, who person contracting to carry out any functions under this chapter, who
has possession of or access to individually identifiable DNA information has possession of or access to individually identifiable DNA information
contained in the State DNA Data Base or in the State DNA Data Bank and contained in the State DNA Data Base or in the State DNA Data Bank and
who for pecuniary gain for such person or for any other person discloses who for pecuniary gain for such person or for any other person discloses
it in any manner to any person or agency not authorized to receive it it in any manner to any person or agency not authorized to receive it
commits a misdemeanor of the first degree. commits a misdemeanor of the first degree.
Chapter Eleven Addendum 1 Chapter Eleven Addendum 1

Notice of Registration Requirements Notice of Registration Requirements
TIER I OFFENDERS TIER I OFFENDERS
1. You, ____________________________, have been convicted of the following offense(s): 1. You, ____________________________, have been convicted of the following offense(s):
OFFENSE BILL NUMBER OFFENSE BILL NUMBER
_________________________________ ___________________________ _________________________________ ___________________________
2. It has been determined that you are not a sexually violent predator. 2. It has been determined that you are not a sexually violent predator.
3. You must register with the Pennsylvania State Police for a period of fifteen (15) 3. You must register with the Pennsylvania State Police for a period of fifteen (15)
years. years.
4. You must register with the Pennsylvania State Police IMMEDIATELY, through either 4. You must register with the Pennsylvania State Police IMMEDIATELY, through either
state or local prison officials, at the county department of probation and parole or state or local prison officials, at the county department of probation and parole or
at any designated state police registration site. at any designated state police registration site.
5. If you are sentenced to a term of incarceration, you must notify the registering 5. If you are sentenced to a term of incarceration, you must notify the registering
official in the state or county prison facility of your conviction and duty to register. official in the state or county prison facility of your conviction and duty to register.
6. You are required to appear in person annually to verify your information with the 6. You are required to appear in person annually to verify your information with the
Pennsylvania State Police. You are required to appear within ten days before the Pennsylvania State Police. You are required to appear within ten days before the
annual date designated by the Pennsylvania State Police. annual date designated by the Pennsylvania State Police.
7. If you are homeless, you are required to appear in person monthly (every 30 days) 7. If you are homeless, you are required to appear in person monthly (every 30 days)
until you establish permanent residence. until you establish permanent residence.
8. You are required to register the following information with the Pennsylvania State 8. You are required to register the following information with the Pennsylvania State
Police: Police:
a. Name, including aliases or nicknames a. Name, including aliases or nicknames
b. Any designation or monikers used for self-identification on the internet b. Any designation or monikers used for self-identification on the internet
c. Telephone numbers, including cell phone numbers c. Telephone numbers, including cell phone numbers
d. Social security number d. Social security number
e. Address of residence or intended residences and locations where you e. Address of residence or intended residences and locations where you
receive mail receive mail
f. If homeless, temporary habitat or other temporary place of abode or f. If homeless, temporary habitat or other temporary place of abode or
dwelling, including, but not limited to, a homeless shelter or park as well as dwelling, including, but not limited to, a homeless shelter or park as well as
lists of places you eat, frequent, and engage in leisure activities as well as lists of places you eat, frequent, and engage in leisure activities as well as
any planned destinations any planned destinations

g. Temporary lodging (seven days or more) and the dates you will be g. Temporary lodging (seven days or more) and the dates you will be
temporarily lodged temporarily lodged
h. Passport and documents establishing immigration status h. Passport and documents establishing immigration status
i. Name and address of employment. If you do not have a fixed place of i. Name and address of employment. If you do not have a fixed place of
employment, this includes travel routes or general areas where you work. employment, this includes travel routes or general areas where you work.
Employment includes full time or part time for a period of time exceeding 4 Employment includes full time or part time for a period of time exceeding 4
days during a 7 day period or for an aggregated period of time exceeding 15 days during a 7 day period or for an aggregated period of time exceeding 15
days during any calendar year days during any calendar year
j. Occupational or professional license j. Occupational or professional license
k. Name and address of any school where you are or will be a student k. Name and address of any school where you are or will be a student
l. A description and license plate number of any vehicle owned or operated by l. A description and license plate number of any vehicle owned or operated by
you and the address where the vehicle is stored you and the address where the vehicle is stored
m. Drivers license m. Drivers license
n. Date of birth n. Date of birth
9. You are required to appear in person to report any changes to your above personal 9. You are required to appear in person to report any changes to your above personal
information, such as a change in residence, to the Pennsylvania State Police within information, such as a change in residence, to the Pennsylvania State Police within
three business days of the change. The exception to this is if you are homeless, then three business days of the change. The exception to this is if you are homeless, then
you need only report the changes at your monthly in person verification. you need only report the changes at your monthly in person verification.
10. If you move to another state, you must notify the law enforcement agency of the 10. If you move to another state, you must notify the law enforcement agency of the
new state within three business days of establishing residence in the new state. new state within three business days of establishing residence in the new state.
11. If you are a student, employed or carry on a vocation in another state that has a 11. If you are a student, employed or carry on a vocation in another state that has a
registration requirement for an offender in your category, you must register with registration requirement for an offender in your category, you must register with
that state within three business days. that state within three business days.
PENALTIES FOR FAILURE TO REGISTER PENALTIES FOR FAILURE TO REGISTER
18 Pa.C.S. 4915.1 provides that an individual subject to registration commits an offense 18 Pa.C.S. 4915.1 provides that an individual subject to registration commits an offense
if he knowingly fails to: if he knowingly fails to:
1) register with the Pennsylvania State Police as required; 1) register with the Pennsylvania State Police as required;
2) verify personal information as required; or, 2) verify personal information as required; or,
3) provide accurate information when registering or verifying personal information. 3) provide accurate information when registering or verifying personal information.
Grading For Tier I Offenders Who Must Register for Fifteen Years Grading For Tier I Offenders Who Must Register for Fifteen Years
1) An individual subject to registration who fails to register with the Pennsylvania 1) An individual subject to registration who fails to register with the Pennsylvania
State Police or who fails to appear in person on the verification date specified State Police or who fails to appear in person on the verification date specified
commits a felony of the third degree and is subject to a 2 4 year mandatory commits a felony of the third degree and is subject to a 2 4 year mandatory
sentence for a first offense and a 5 10 year mandatory sentence for subsequent sentence for a first offense and a 5 10 year mandatory sentence for subsequent
offenses. offenses.
2) An individual subject to registration who fails to provide accurate information 2) An individual subject to registration who fails to provide accurate information
during either the registration or verification process commits a felony of the during either the registration or verification process commits a felony of the
second degree and is subject to a 3 6 year mandatory sentence for a first second degree and is subject to a 3 6 year mandatory sentence for a first
offense and a 7 14 mandatory sentence for subsequent offenses. offense and a 7 14 mandatory sentence for subsequent offenses.
EFFECT OF NOTICE EFFECT OF NOTICE
Neither failure on the part of the Pennsylvania State Police to send nor failure of an Neither failure on the part of the Pennsylvania State Police to send nor failure of an
offender to receive any notice or information shall be a defense to a prosecution offender to receive any notice or information shall be a defense to a prosecution
commenced against an individual arising from a violation of this section. commenced against an individual arising from a violation of this section.
CERTIFICATION CERTIFICATION
I hereby certify that I have read or have had read to me the information contained above, I hereby certify that I have read or have had read to me the information contained above,
and it has been explained to me and any questions I had have been answered by my and it has been explained to me and any questions I had have been answered by my
attorney and the Judge. I fully understand my registration obligations. attorney and the Judge. I fully understand my registration obligations.
________________________________ ________________________________
________________________________ ________________________________
Defendant Defendant
I hereby certify that I have read and explained the information on this form to I hereby certify that I have read and explained the information on this form to
my client. my client.
_________________________________ _________________________________
_________________________________ _________________________________
Attorney for Defendant Attorney for Defendant
The court certifies that the duty to register was explained to the Defendant. The court certifies that the duty to register was explained to the Defendant.
________________________________ ________________________________
__________________________________J. __________________________________J.
Date: ________________________ Date: ________________________

TIER II OFFENDERS TIER II OFFENDERS
_________________________________ ___________________________ _________________________________ ___________________________
3. You must register with the Pennsylvania State Police for a period of twenty-five 3. You must register with the Pennsylvania State Police for a period of twenty-five
(25) years. (25) years.
6. You are required to appear in person semiannually (twice a year) to verify your 6. You are required to appear in person semiannually (twice a year) to verify your
information with the Pennsylvania State Police. You are required to appear within information with the Pennsylvania State Police. You are required to appear within
ten days before the semiannual dates designated by the Pennsylvania State Police. ten days before the semiannual dates designated by the Pennsylvania State Police.
Police: Police:
3) provide accurate information when registering or verifying personal 3) provide accurate information when registering or verifying personal
Grading For Tier II Offenders Who Must Register for Twenty-five Years Grading For Tier II Offenders Who Must Register for Twenty-five Years
commits a felony of the second degree and is subject to a 3 6 year mandatory commits a felony of the second degree and is subject to a 3 6 year mandatory
offenses. offenses.
first degree and is subject to a 5 10 year mandatory sentence for a first offense first degree and is subject to a 5 10 year mandatory sentence for a first offense
and a 7 14 mandatory sentence for subsequent offenses. and a 7 14 mandatory sentence for subsequent offenses.
Neither failure on the part of the Pennsylvania State Police to send nor failure Neither failure on the part of the Pennsylvania State Police to send nor failure
of an offender to receive any notice or information shall be a defense to a prosecution of an offender to receive any notice or information shall be a defense to a prosecution
I hereby certify that I have read or have had read to me the information contained I hereby certify that I have read or have had read to me the information contained
above, and it has been explained to me and any questions I had have been answered by above, and it has been explained to me and any questions I had have been answered by
my attorney and the Judge. I fully understand my registration obligations. my attorney and the Judge. I fully understand my registration obligations.
________________________________ ________________________________
________________________________ ________________________________
Defendant Defendant
I hereby certify that I have read and explained the information on this form I hereby certify that I have read and explained the information on this form
to my client. to my client.
_________________________________ _________________________________
_________________________________ _________________________________
________________________________ ________________________________
__________________________________J. __________________________________J.
Date: ___________________________ Date: ___________________________

TIER III OFFENDERS TIER III OFFENDERS
_________________________________ ___________________________ _________________________________ ___________________________
3. You are subject to lifetime registration with the Pennsylvania State Police. 3. You are subject to lifetime registration with the Pennsylvania State Police.
6. You are required to appear in person quarterly (four times a year) to verify your 6. You are required to appear in person quarterly (four times a year) to verify your
ten days before the quarterly dates designated by the Pennsylvania State Police. ten days before the quarterly dates designated by the Pennsylvania State Police.
Police: Police:
Grading For Tier III Offenders Who Must Register for Life Grading For Tier III Offenders Who Must Register for Life
commits a felony of the second degree and is subject to a 3 6 year mandatory commits a felony of the second degree and is subject to a 3 6 year mandatory
offenses. offenses.
first degree and is subject to a 5 10 year mandatory sentence for a first offense first degree and is subject to a 5 10 year mandatory sentence for a first offense
and a 7 14 mandatory sentence for subsequent offenses. and a 7 14 mandatory sentence for subsequent offenses.
Neither failure on the part of the Pennsylvania State Police to send nor failure Neither failure on the part of the Pennsylvania State Police to send nor failure
of an offender to receive any notice or information shall be a defense to a prosecution of an offender to receive any notice or information shall be a defense to a prosecution
my attorney and the Judge. I fully understand my registration obligations. my attorney and the Judge. I fully understand my registration obligations.
________________________________ ________________________________
________________________________ ________________________________
Defendant Defendant
I hereby certify that I have read and explained the information on this form I hereby certify that I have read and explained the information on this form
to my client. to my client.
_________________________________ _________________________________
_________________________________ _________________________________
________________________________ ________________________________
__________________________________J. __________________________________J.
Date: _________________________ Date: _________________________

SEXUALLY VIOLENT PREDATORS SEXUALLY VIOLENT PREDATORS
_________________________________ ___________________________ _________________________________ ___________________________
2. It has been determined that you are a sexually violent predator. 2. It has been determined that you are a sexually violent predator.
3. You are subject to lifetime registration with the Pennsylvania State Police. 3. You are subject to lifetime registration with the Pennsylvania State Police.
6. You are required to appear in person quarterly (four times a year) to verify your 6. You are required to appear in person quarterly (four times a year) to verify your
ten days before the quarterly dates designated by the Pennsylvania State Police. ten days before the quarterly dates designated by the Pennsylvania State Police.
Police: Police:
12. You are required to attend at least monthly counseling sessions in a program 12. You are required to attend at least monthly counseling sessions in a program
approved by the Sexual Offender Assessment Board. You must pay all fees for these approved by the Sexual Offender Assessment Board. You must pay all fees for these
sessions unless you can prove that you cannot afford to do so, in which case the sessions unless you can prove that you cannot afford to do so, in which case the
fees may be paid by the parole office. fees may be paid by the parole office.
PENALTIES FOR FAILURE TO REGISTER OR ATTEND MONTHLY COUNSELING PENALTIES FOR FAILURE TO REGISTER OR ATTEND MONTHLY COUNSELING
2) verify personal information as required; 2) verify personal information as required;
information; or, information; or,
4) attend monthly counseling sessions. 4) attend monthly counseling sessions.
Grading For Sexually Violent Predators Who Must Register for Life Grading For Sexually Violent Predators Who Must Register for Life
1) An individual subject to registration who fails to register with the 1) An individual subject to registration who fails to register with the
Pennsylvania State Police or who fails to appear in person on the verification Pennsylvania State Police or who fails to appear in person on the verification
date specified commits a felony of the second degree and is subject to a 3 date specified commits a felony of the second degree and is subject to a 3
6 year mandatory sentence for a first offense and a 5 10 year mandatory 6 year mandatory sentence for a first offense and a 5 10 year mandatory
sentence for subsequent offenses. sentence for subsequent offenses.
2) An individual subject to registration who fails to provide accurate 2) An individual subject to registration who fails to provide accurate
information during either the registration or verification process commits a information during either the registration or verification process commits a
felony of the first degree and is subject to a 5 10 year mandatory sentence felony of the first degree and is subject to a 5 10 year mandatory sentence
for a first offense and a 7 14 mandatory sentence for subsequent offenses. for a first offense and a 7 14 mandatory sentence for subsequent offenses.
3) An individual classified as a sexually violent predator who fails to attend 3) An individual classified as a sexually violent predator who fails to attend
monthly counseling commits a misdemeanor of the first degree. monthly counseling commits a misdemeanor of the first degree.
Neither failure on the part of the Pennsylvania State Police to send nor failure of an Neither failure on the part of the Pennsylvania State Police to send nor failure of an
offender to receive any notice or information shall be a defense to a prosecution offender to receive any notice or information shall be a defense to a prosecution
my attorney and the Judge. I fully understand my registration and counseling obligations. my attorney and the Judge. I fully understand my registration and counseling obligations.
________________________________ ________________________________
________________________________ ________________________________
Defendant Defendant
I hereby certify that I have read and explained the information on this form to my client. I hereby certify that I have read and explained the information on this form to my client.
_________________________________ _________________________________
_________________________________ _________________________________
The court certifies that the duty to register and attend counseling was explained to the The court certifies that the duty to register and attend counseling was explained to the
Defendant. Defendant.
________________________________ ________________________________
__________________________________J. __________________________________J.
Date: ______________________ Date: ______________________

Pennsylvania State Police - Registration Details Pennsylvania State Police - Registration Details
Pennsylvania State Police Megans Law Section Pennsylvania State Police Megans Law Section
42 Pa. C.S. 9799.32(1) authorizes the Pennsylvania State Police to create and maintain a 42 Pa. C.S. 9799.32(1) authorizes the Pennsylvania State Police to create and maintain a
state registry of sexual offenders, Sexually Violent Deviate Children, and Sexually Violent state registry of sexual offenders, Sexually Violent Deviate Children, and Sexually Violent
Predators. Predators.
Registration Details Registration Details

Tier Classification Tier Classification
Tier I Sexual Offenses - 15 Year Registration Tier I Sexual Offenses - 15 Year Registration
Offenders convicted of the following offenses shall be classified as a Tier I offender: Offenders convicted of the following offenses shall be classified as a Tier I offender:
18 Pa.C.S. 2902(b) (relating to Unlawful Restraint). 18 Pa.C.S. 2902(b) (relating to Unlawful Restraint).
18 Pa.C.S. 2903(b) (relating to False Imprisonment). 18 Pa.C.S. 2903(b) (relating to False Imprisonment).
18 Pa.C.S. 2904 (relating to Interference with Custody of Children). 18 Pa.C.S. 2904 (relating to Interference with Custody of Children).
18 Pa.C.S. 2910 (relating to Luring a Child into a Motor Vehicle or Structure). 18 Pa.C.S. 2910 (relating to Luring a Child into a Motor Vehicle or Structure).
18 Pa.C.S. 3124.2(a) (relating to Institutional Sexual Assault). 18 Pa.C.S. 3124.2(a) (relating to Institutional Sexual Assault).
18 Pa.C.S. 3126(a)(1) (relating to Indecent Assault). 18 Pa.C.S. 3126(a)(1) (relating to Indecent Assault).
18 Pa.C.S. 6301(a)(1)(ii) (relating to Corruption of Minors). 18 Pa.C.S. 6301(a)(1)(ii) (relating to Corruption of Minors).
18 Pa.C.S. 6312(d) (relating to Sexual Abuse of Children). 18 Pa.C.S. 6312(d) (relating to Sexual Abuse of Children).
18 Pa.C.S. 7507.1. (relating to Invasion of Privacy). 18 Pa.C.S. 7507.1. (relating to Invasion of Privacy).
18 U.S.C. 1801 (relating to Video Voyeurism). 18 U.S.C. 1801 (relating to Video Voyeurism).
18 U.S.C. 2252(a)(4) (relating to Certain Activities Relating to Material 18 U.S.C. 2252(a)(4) (relating to Certain Activities Relating to Material
Involving the Sexual Exploitation of Minors). Involving the Sexual Exploitation of Minors).
18 U.S.C. 2252A (relating to Certain Activities Relating to Material Constituting 18 U.S.C. 2252A (relating to Certain Activities Relating to Material Constituting
or Containing Child Pornography). or Containing Child Pornography).
18 U.S.C. 2252B (relating to Misleading Domain Names on the Internet). 18 U.S.C. 2252B (relating to Misleading Domain Names on the Internet).
18 U.S.C. 2252C (relating to Misleading Words or Digital Images on the 18 U.S.C. 2252C (relating to Misleading Words or Digital Images on the
Internet). Internet).
18 U.S.C. 2422(a) (relating to Coercion and Enticement). 18 U.S.C. 2422(a) (relating to Coercion and Enticement).
18 U.S.C. 2423(b), and (c) (relating to Transportation of Minors). 18 U.S.C. 2423(b), and (c) (relating to Transportation of Minors).
18 U.S.C. 2424 (relating to Filing Factual Statement about Alien individual). 18 U.S.C. 2424 (relating to Filing Factual Statement about Alien individual).
18 U.S.C. 2425 (relating to Use of Interstate Facilities to Transmit Information 18 U.S.C. 2425 (relating to Use of Interstate Facilities to Transmit Information
about a Minor). about a Minor).
A conviction or court martial of a comparable military offense or similar offense A conviction or court martial of a comparable military offense or similar offense
under the laws of another jurisdiction or foreign country or under a former law under the laws of another jurisdiction or foreign country or under a former law
of this Commonwealth. of this Commonwealth.
A conviction of an attempt, conspiracy or solicitation to commit an offense A conviction of an attempt, conspiracy or solicitation to commit an offense
enumerated under Tier I classification. enumerated under Tier I classification.

A conviction for a sexual offense in another jurisdiction or foreign country that A conviction for a sexual offense in another jurisdiction or foreign country that
is not set forth in this section, but nevertheless requires registration under a is not set forth in this section, but nevertheless requires registration under a
sexual offender statute in the jurisdiction or foreign country. sexual offender statute in the jurisdiction or foreign country.
Tier II Sexual Offenses 25 Year Registration Tier II Sexual Offenses 25 Year Registration
Offenders convicted of the following offenses shall be classified as a Tier II offender: Offenders convicted of the following offenses shall be classified as a Tier II offender:
18 Pa.C.S. 3122.1(a)(2) (relating to Statutory Sexual Assault). 18 Pa.C.S. 3122.1(a)(2) (relating to Statutory Sexual Assault).
18 Pa.C.S. 3124.2(a.2) and (a.3) (relating to Institutional Sexual Assault). 18 Pa.C.S. 3124.2(a.2) and (a.3) (relating to Institutional Sexual Assault).
18 Pa.C.S. 3126(a)(2), (3), (4), (5), (6) or (8) (relating to Indecent Assault). 18 Pa.C.S. 3126(a)(2), (3), (4), (5), (6) or (8) (relating to Indecent Assault).
18 Pa.C.S. 5902(b.1) (relating to Prostitution and related Offenses). 18 Pa.C.S. 5902(b.1) (relating to Prostitution and related Offenses).
18 Pa.C.S. 5903(a)(3)(ii), (4)(ii), (5)(ii) or (6) (relating to Obscene and other 18 Pa.C.S. 5903(a)(3)(ii), (4)(ii), (5)(ii) or (6) (relating to Obscene and other
Sexual Materials and Performances). Sexual Materials and Performances).
18 Pa.C.S. 6312(b) and (c)(relating to the Sexual Abuse of Children). 18 Pa.C.S. 6312(b) and (c)(relating to the Sexual Abuse of Children).
18 Pa.C.S. 6318 (relating to Unlawful Contact with Minor). 18 Pa.C.S. 6318 (relating to Unlawful Contact with Minor).
18 Pa.C.S. 6320 (relating to Sexual Exploitation of Children). 18 Pa.C.S. 6320 (relating to Sexual Exploitation of Children).
18 U.S.C. 1591 (relating to Sex Trafficking of Children by Force, Fraud, or 18 U.S.C. 1591 (relating to Sex Trafficking of Children by Force, Fraud, or
Coercion). Coercion).
18 U.S.C. 2243 (relating to Sexual Abuse of a Minor or Ward). 18 U.S.C. 2243 (relating to Sexual Abuse of a Minor or Ward).
18 U.S.C. 2244 (relating to Abusive Sexual Contact) where the victim is 13 18 U.S.C. 2244 (relating to Abusive Sexual Contact) where the victim is 13
years of age or older but under 18 years of age. years of age or older but under 18 years of age.
18 U.S.C. 2251 (relating to Sexual Exploitation of Children). 18 U.S.C. 2251 (relating to Sexual Exploitation of Children).
18 U.S.C. 2251A (relating to Selling or Buying of Children). 18 U.S.C. 2251A (relating to Selling or Buying of Children).
18 U.S.C. 2252(a)(1), (2) or (3) (relating to Certain Activities Relating to 18 U.S.C. 2252(a)(1), (2) or (3) (relating to Certain Activities Relating to
Material Involving the Sexual Exploitation of Minors). Material Involving the Sexual Exploitation of Minors).
18 U.S.C. 2260 (relating to Production of Sexually Explicit Depictions of a 18 U.S.C. 2260 (relating to Production of Sexually Explicit Depictions of a
Minor for Importation into the United States). Minor for Importation into the United States).
18 U.S.C. 2421 (relating to Transportation Generally). 18 U.S.C. 2421 (relating to Transportation Generally).
18 U.S.C. 2422(b) (relating to Coercion and Enticement). 18 U.S.C. 2422(b) (relating to Coercion and Enticement).
18 U.S.C. 2423(a) (relating to Transportation of Minors). 18 U.S.C. 2423(a) (relating to Transportation of Minors).
enumerated under Tier II classification. enumerated under Tier II classification.
Tier III Sexual Offenses Lifetime Registration Tier III Sexual Offenses Lifetime Registration
Offenders convicted of the following offenses shall be classified as a Tier III offender: Offenders convicted of the following offenses shall be classified as a Tier III offender:
18 Pa.C.S. 2901(a.1) (relating to Kidnapping). 18 Pa.C.S. 2901(a.1) (relating to Kidnapping).

18 Pa.C.S. 3121 (relating to Rape). 18 Pa.C.S. 3121 (relating to Rape).
18 Pa.C.S. 3122.1(b) (relating to Statutory Sexual Assault). 18 Pa.C.S. 3122.1(b) (relating to Statutory Sexual Assault).
18 Pa.C.S. 3123 (relating to Involuntary Deviate Sexual Intercourse). 18 Pa.C.S. 3123 (relating to Involuntary Deviate Sexual Intercourse).
18 Pa.C.S. 3124.1 (relating to Sexual Assault). 18 Pa.C.S. 3124.1 (relating to Sexual Assault).
18 Pa.C.S. 3124.2(a.1) (relating to Institutional Sexual Assault). 18 Pa.C.S. 3124.2(a.1) (relating to Institutional Sexual Assault).
18 Pa.C.S. 3125 (relating to Aggravated Indecent Assault). 18 Pa.C.S. 3125 (relating to Aggravated Indecent Assault).
18 Pa.C.S. 3126(a)(7) (relating to Indecent Assault). 18 Pa.C.S. 3126(a)(7) (relating to Indecent Assault).
18 Pa.C.S. 4302(b) (relating to Incest). 18 Pa.C.S. 4302(b) (relating to Incest).
18 U.S.C. 2241 (relating to Aggravated Sexual Abuse). 18 U.S.C. 2241 (relating to Aggravated Sexual Abuse).
18 U.S.C. 2242 (relating to Sexual Abuse). 18 U.S.C. 2242 (relating to Sexual Abuse).
18 U.S.C. 2244 where the victim is under 13 years of age (relating to Abusive 18 U.S.C. 2244 where the victim is under 13 years of age (relating to Abusive
Sexual Contact). Sexual Contact).
enumerated under Tier III classification. enumerated under Tier III classification.
Two or more convictions of an offense(s) enumerated under Tier I or Tier II Two or more convictions of an offense(s) enumerated under Tier I or Tier II
classification. classification.
Juvenile Offenders Juvenile Offenders
A Juvenile Offender who was adjudicated delinquent in this Commonwealth of one or A Juvenile Offender who was adjudicated delinquent in this Commonwealth of one or
more of the below offenses, or who was adjudicated delinquent in another jurisdiction more of the below offenses, or who was adjudicated delinquent in another jurisdiction
or foreign country as a consequence of having committed an offense similar to one or or foreign country as a consequence of having committed an offense similar to one or
more of the below offenses, shall register for life. more of the below offenses, shall register for life.
18 Pa.C.S. 3121 (relating to Rape). 18 Pa.C.S. 3121 (relating to Rape).

18 Pa.C.S. 3123 (relating to Involuntary Deviate Sexual Intercourse). 18 Pa.C.S. 3123 (relating to Involuntary Deviate Sexual Intercourse).
18 Pa.C.S. 3125 (relating to Aggravated Indecent Assault). 18 Pa.C.S. 3125 (relating to Aggravated Indecent Assault).
An adjudication of an attempt, solicitation or conspiracy to commit an offense An adjudication of an attempt, solicitation or conspiracy to commit an offense
under 18 Pa.C.S. 3121, 3123, or 3125. under 18 Pa.C.S. 3121, 3123, or 3125.
A Juvenile Offender who is required to register in a sexual offender registry A Juvenile Offender who is required to register in a sexual offender registry
in another jurisdiction or foreign country as a consequence of having been in another jurisdiction or foreign country as a consequence of having been
adjudicated delinquent for an offense similar to an offense which, if committed adjudicated delinquent for an offense similar to an offense which, if committed
in this Commonwealth, would not require the individual to register, shall in this Commonwealth, would not require the individual to register, shall
register for a period of time equal to that required of the individual in the other register for a period of time equal to that required of the individual in the other
jurisdiction or foreign country. jurisdiction or foreign country.
Sexually Violent Delinquent Child Sexually Violent Delinquent Child
A child who has been found to be delinquent for an act of sexual violence which if A child who has been found to be delinquent for an act of sexual violence which if
committed by an adult would be a violation of 18 Pa.C.S. 3121 (relating to rape), 3123 committed by an adult would be a violation of 18 Pa.C.S. 3121 (relating to rape), 3123
(relating to involuntary deviate sexual intercourse), 3124.1 (relating to sexual assault), (relating to involuntary deviate sexual intercourse), 3124.1 (relating to sexual assault),
3125 (relating to aggravated indecent assault), 3126 (relating to indecent assault) or 3125 (relating to aggravated indecent assault), 3126 (relating to indecent assault) or
4302 (relating to incest)and who has been determined by the Court to be in need of 4302 (relating to incest)and who has been determined by the Court to be in need of
commitment for involuntary treatment. commitment for involuntary treatment.
A Sexually Violent Delinquent Child shall register for life. A Sexually Violent Delinquent Child shall register for life.
Sexually Violent Predator Sexually Violent Predator
An individual convicted of a Tier I sexual offense, a Tier II sexual offense, or a Tier III An individual convicted of a Tier I sexual offense, a Tier II sexual offense, or a Tier III
sexual offense who is determined to be a Sexually Violent Predator by the Court. The sexual offense who is determined to be a Sexually Violent Predator by the Court. The
term also includes an individual determined to be a Sexually Violent Predator or a similar term also includes an individual determined to be a Sexually Violent Predator or a similar
designation where the determination occurred in another jurisdiction, a foreign country designation where the determination occurred in another jurisdiction, a foreign country
or by court martial following a judicial or administrative determination pursuant to a or by court martial following a judicial or administrative determination pursuant to a
process similar to that of the Commonwealths. process similar to that of the Commonwealths.
A Sexually Violent Predator shall register for life. A Sexually Violent Predator shall register for life.
Registration Criteria Registration Criteria
The following individuals shall register with the Pennsylvania State Police as a sexual The following individuals shall register with the Pennsylvania State Police as a sexual
offender: offender:
An individual meeting the criteria listed under Applicability and who has a An individual meeting the criteria listed under Applicability and who has a
residence within this Commonwealth or is a transient. residence within this Commonwealth or is a transient.
An individual meeting the criteria listed under Applicability and does not have An individual meeting the criteria listed under Applicability and does not have
a residence in this Commonwealth but: a residence in this Commonwealth but:
1. Is employed in this Commonwealth; or 1. Is employed in this Commonwealth; or
2. Is a student in this Commonwealth. 2. Is a student in this Commonwealth.
Reporting Intervals Reporting Intervals
Individuals required to register as a sexual offender shall appear in-person at an approved Individuals required to register as a sexual offender shall appear in-person at an approved
Registration or Verification Site according to their assigned Tier or classification: Registration or Verification Site according to their assigned Tier or classification:
Tier I offenders required to appear annually. Tier I offenders required to appear annually.
Tier II offenders required to appear semiannually (twice a year). Tier II offenders required to appear semiannually (twice a year).
Tier III offenders required to appear quarterly (four times a year). Tier III offenders required to appear quarterly (four times a year).
Transient offenders required to appear monthly. Transient offenders required to appear monthly.
Juvenile offenders required to appear quarterly (four times a year). Juvenile offenders required to appear quarterly (four times a year).
Sexually Violent Delinquent Child required to appear quarterly (four times a Sexually Violent Delinquent Child required to appear quarterly (four times a
year). year).
Sexually Violent Predator required to appear quarterly (four times a year). Sexually Violent Predator required to appear quarterly (four times a year).
General Registration Requirements General Registration Requirements
In addition to the periodic in-person reporting interval(s), an offender shall appear in- In addition to the periodic in-person reporting interval(s), an offender shall appear in-
person at an approved Registration or Verification Site within three business days to person at an approved Registration or Verification Site within three business days to
provide current information or change(s) relating to: provide current information or change(s) relating to:
A change in name, including an alias. A change in name, including an alias.
A commencement of residence, change in residence, termination of residence A commencement of residence, change in residence, termination of residence
or failure to maintain a residence, thus making the individual a transient. or failure to maintain a residence, thus making the individual a transient.
Commencement of employment, a change in the location or entity in which the Commencement of employment, a change in the location or entity in which the
individual is employed or a termination of employment. individual is employed or a termination of employment.
Initial enrollment as a student, a change in enrollment as a student or Initial enrollment as a student, a change in enrollment as a student or
termination as a student. termination as a student.
An addition or a change in telephone number, including a cell phone number, or An addition or a change in telephone number, including a cell phone number, or
a termination of telephone number, including a cell phone number. a termination of telephone number, including a cell phone number.
An addition, a change in and termination of a motor vehicle owned or operated by An addition, a change in and termination of a motor vehicle owned or operated by
an offender, including watercraft or aircraft. In order to fulfill the requirements an offender, including watercraft or aircraft. In order to fulfill the requirements
of this paragraph, the individual must provide any license plate numbers and of this paragraph, the individual must provide any license plate numbers and
registration numbers and other identifiers and an addition to or change in the registration numbers and other identifiers and an addition to or change in the
address of the place the where the vehicle is stored. address of the place the where the vehicle is stored.
A commencement of temporary lodging, a change in temporary lodging or a A commencement of temporary lodging, a change in temporary lodging or a
termination of temporary lodging. In order to fulfill the requirements of this termination of temporary lodging. In order to fulfill the requirements of this
paragraph, the individual must provide the specific length of time and the dates paragraph, the individual must provide the specific length of time and the dates
during which the individual will be temporarily lodged. during which the individual will be temporarily lodged.
An addition, change in or termination of e-mail address, instant message address An addition, change in or termination of e-mail address, instant message address
or any other designations used in Internet communications or postings. or any other designations used in Internet communications or postings.
An addition, change in or termination of information related to occupational An addition, change in or termination of information related to occupational
and professional licensing, including type of license held and license number. and professional licensing, including type of license held and license number.
International Travel International Travel
In addition to the periodic in-person appearance required above, an offender shall In addition to the periodic in-person appearance required above, an offender shall
appear in-person at an approved Registration or Verification Site no less than 21 days appear in-person at an approved Registration or Verification Site no less than 21 days
in advance of traveling outside of the United States. The individual shall provide the in advance of traveling outside of the United States. The individual shall provide the
following information: following information:
(1) Dates of travel, including date of return to the United States. (1) Dates of travel, including date of return to the United States.
(2) Destinations. (2) Destinations.
(3) Temporary lodging. (3) Temporary lodging.
________________________________________ ________________________________________
Copyright 2003-08, Commonwealth of PA - Pennsylvania State Police Copyright 2003-08, Commonwealth of PA - Pennsylvania State Police
This Website is for Informational Purposes Only - If you have an emergency, crime, or This Website is for Informational Purposes Only - If you have an emergency, crime, or
incident to report, please contact your nearest Police Agency or call 911. incident to report, please contact your nearest Police Agency or call 911.
Questions regarding the contents of the PSP Megans Law Website? Questions regarding the contents of the PSP Megans Law Website?
Call 1-866-771-3170 Call 1-866-771-3170
RESOURCES RESOURCES
Resources Resources
Resources Resources
Chapter Twelve Resources Chapter Twelve Resources

Resource List
National Resource Resource List
National Resource
Victim Issues Resources Victim Issues Resources
Office for Victms of Crime (OVC) Office for Victms of Crime (OVC)
Contact Information: Contact Information:
http://www.ojp.usdoj.gov/ovc/ http://www.ojp.usdoj.gov/ovc/
The Office for Victims of Crime (OVC) was established by the 1984 Victims of Crime The Office for Victims of Crime (OVC) was established by the 1984 Victims of Crime
Act (VOCA) to oversee diverse programs that benefit victims of crime. OVC provides Act (VOCA) to oversee diverse programs that benefit victims of crime. OVC provides
substantial funding to state victim assistance and compensation programsthe lifeline substantial funding to state victim assistance and compensation programsthe lifeline
services that help victims to heal. The agency supports trainings designed to educate services that help victims to heal. The agency supports trainings designed to educate
criminal justice and allied professionals regarding the rights and needs of crime victims. criminal justice and allied professionals regarding the rights and needs of crime victims.
Office on V iolence Against W

Violence omen
Women Office on V iolence Against W
Violence omen
Women
http://www.usdoj.gov/ovw/ http://www.usdoj.gov/ovw/
Phone: 202-307-6026 Phone: 202-307-6026
Fax: 202-307-3911 Fax: 202-307-3911
TTY: 202-307-2277 TTY: 202-307-2277
Since its inception in 1995, the Violence Against Women Office, now the Office on Violence Since its inception in 1995, the Violence Against Women Office, now the Office on Violence
Against Women (OVW) has handled the Departments legal and policy issues regarding Against Women (OVW) has handled the Departments legal and policy issues regarding
violence against women, coordinated Departmental efforts, provided national and violence against women, coordinated Departmental efforts, provided national and
international leadership, received international visitors interested in learning about the international leadership, received international visitors interested in learning about the
federal governments role in addressing violence against women, and responded to requests federal governments role in addressing violence against women, and responded to requests
for information regarding violence against women. for information regarding violence against women.
National Center for Victims of Crime National Center for Victims of Crime
http://www.ncvc.org/ http://www.ncvc.org/
Phone: 202-467-8700 Phone: 202-467-8700
Fax: 202-467-8701 Fax: 202-467-8701
Email: webmaster@ncvc.org Email: webmaster@ncvc.org
The National Center for Victims of Crime (NCVC) provides direct services and resources; The National Center for Victims of Crime (NCVC) provides direct services and resources;
advocates for passage of laws and public policies that create resources and secure rights advocates for passage of laws and public policies that create resources and secure rights
and protections for crime victims; delivers training and technical assistance to victim service and protections for crime victims; delivers training and technical assistance to victim service
organizations, counselors, attorneys, criminal justice agencies, and allied professionals; and organizations, counselors, attorneys, criminal justice agencies, and allied professionals; and
fosters cutting-edge thinking about the impact of crime and the ways in which each gain fosters cutting-edge thinking about the impact of crime and the ways in which each gain
control of their lives. control of their lives.
Resources 1 Resources 1
Resources Resources
Focus areas include: Focus areas include:

Victim Services Victim Services
Civil Justice Civil Justice
Public Policy Public Policy
Training and Technical assistance Training and Technical assistance
National Sexual Violence Resource Center National Sexual Violence Resource Center
Contact Information: http://www.nsvrc.org/ Contact Information: http://www.nsvrc.org/
The National Sexual Violence Resource Center (NSVRC) is a comprehensive collection and The National Sexual Violence Resource Center (NSVRC) is a comprehensive collection and
distribution center for information, research and emerging policy on sexual violence distribution center for information, research and emerging policy on sexual violence
intervention and prevention. The NSVRC provides an extensive on-line library and intervention and prevention. The NSVRC provides an extensive on-line library and
customized technical assistance, as well as, coordinates National Sexual Assault Awareness customized technical assistance, as well as, coordinates National Sexual Assault Awareness
Month initiatives. Month initiatives.
Legal Resources Legal Resources
The American Prosecutors Research Institute The American Prosecutors Research Institute
http://www.ndaa.org/apri/index.html http://www.ndaa.org/apri/index.html
99 Canal Center Plaza, Suite 510 99 Canal Center Plaza, Suite 510
Alexandria, VA 22314 Alexandria, VA 22314
Phone: 703-549-9222 Phone: 703-549-9222
Fax: 703-836-3195 Fax: 703-836-3195
In 1984, the National District Attorneys Association founded the American Prosecutors In 1984, the National District Attorneys Association founded the American Prosecutors
Research Institute (APRI) as a non-profit research and program development resource Research Institute (APRI) as a non-profit research and program development resource
for prosecutors at all levels of government. Since that time, APRI has become a vital for prosecutors at all levels of government. Since that time, APRI has become a vital
resource and national clearinghouse for information on the prosecutorial function. The resource and national clearinghouse for information on the prosecutorial function. The
Institute is committed to providing interdisciplinary responses to the complex problems of Institute is committed to providing interdisciplinary responses to the complex problems of
criminal justice. It is also committed to supporting the highest professional standards among criminal justice. It is also committed to supporting the highest professional standards among
officials entrusted with the crucial responsibility for public safety. officials entrusted with the crucial responsibility for public safety.
APRIs activities are concentrated in the following areas: APRIs activities are concentrated in the following areas:
Training and Curriculum Development, Training and Curriculum Development,
Technical Assistance and Consultation, Technical Assistance and Consultation,
Publications, and Publications, and
Research Research
More specifically, APRI staff can provide: More specifically, APRI staff can provide:
Case law information Case law information
Up-to-date information on legislation Up-to-date information on legislation
Detailed assistance for trial preparation Detailed assistance for trial preparation
Individualized support for trial presentation Individualized support for trial presentation
Access to experts and presenters Access to experts and presenters
Assistance with policy development Assistance with policy development
Information on program development Information on program development
2 2 Resources
Chapter 12 2 2 Resources
Chapter 12
Resources Resources
Topical background material Topical background material

Cooperation for grant development Cooperation for grant development
Sex Offending Behavior Resources Sex Offending Behavior Resources
Center for Sex Offender Management (CSOM) Center for Sex Offender Management (CSOM)
Contact Information: http://www.csom.org/ Contact Information: http://www.csom.org/
CSOM is a national project that supports state and local jurisdictions in the effective CSOM is a national project that supports state and local jurisdictions in the effective
management of sex offenders under community supervision. The project is administered management of sex offenders under community supervision. The project is administered
through a cooperative agreement between OJP and the Center for Effective Public Policy. A through a cooperative agreement between OJP and the Center for Effective Public Policy. A
National Resource Group has been established to guide the activities of the project. The National Resource Group has been established to guide the activities of the project. The
members of the National Resource Group include some of the countrys leading experts members of the National Resource Group include some of the countrys leading experts
and practitioners in the fields of sex offender management, treatment, and supervision. and practitioners in the fields of sex offender management, treatment, and supervision.
CSOMs primary goal is to enhance public safety by preventing further victimization CSOMs primary goal is to enhance public safety by preventing further victimization
through improving the management of sex offenders in the community. CSOMs goals are through improving the management of sex offenders in the community. CSOMs goals are
carried out through three primary activity areas: an information exchange, training and carried out through three primary activity areas: an information exchange, training and
technical assistance, and support to select Resources Sites and OJP grantees. technical assistance, and support to select Resources Sites and OJP grantees.
Resources
Chapter 12 3 3
Resources Resources
Resources Within Pennsylvania

Resources Pennsylvania Resources Within Pennsylvania
Resources Pennsylvania
Victim Issues Victim Issues
Pennsylvania Coalition Against Rape Pennsylvania Coalition Against Rape

http://www.pcar.org http://www.pcar.org
125 N. Enola Drive 125 N. Enola Drive
Enola, PA 17025 Enola, PA 17025
Phone: 717-728-9740 (ask for The Judicial Project Specialist) Phone: 717-728-9740 (ask for The Judicial Project Specialist)
The Pennsylvania Coalition Against Rape (PCAR) is an organization working at the The Pennsylvania Coalition Against Rape (PCAR) is an organization working at the
state and national levels to prevent sexual violence. Incepted in 1975, PCAR continues to state and national levels to prevent sexual violence. Incepted in 1975, PCAR continues to
use its voice to challenge public attitudes, raise public awareness, and effect critical use its voice to challenge public attitudes, raise public awareness, and effect critical
changes in public policy, protocols, and responses to sexual violence. changes in public policy, protocols, and responses to sexual violence.
To provide quality services to victims/survivors of sexual violence and their significant To provide quality services to victims/survivors of sexual violence and their significant
others, PCAR works in concert with its state-wide network of 52 rape crisis centers. The others, PCAR works in concert with its state-wide network of 52 rape crisis centers. The
centers also work to create public awareness and prevention education within their centers also work to create public awareness and prevention education within their
communities. communities.
PCAR can provide information about sexual violence on a variety of topics including: PCAR can provide information about sexual violence on a variety of topics including:
Older Victims, Victims with disabilities, and male victims. Older Victims, Victims with disabilities, and male victims.
Pennsylvania Commission on Crime and Delinquen cy Pennsylvania Commission on Crime and Delinquen cy
http://www.pccd.state.pa.us/ http://www.pccd.state.pa.us/
3101 North Front Street 3101 North Front Street
Harrisburg, PA 17110 Harrisburg, PA 17110
Phone: 717-783-0551 Phone: 717-783-0551
Toll-free in Pennsylvania: 800-692-7292 Toll-free in Pennsylvania: 800-692-7292
Victims Compensation: 800-233-2339 Victims Compensation: 800-233-2339
The Pennsylvania Commission on Crime and Delinquency promotes a collaborative The Pennsylvania Commission on Crime and Delinquency promotes a collaborative
approach to enhance the quality of justice through guidance, leadership and resources by approach to enhance the quality of justice through guidance, leadership and resources by
empowering citizens and communities and influencing state policy. The Office of Victims empowering citizens and communities and influencing state policy. The Office of Victims
Services administers rights and services to victims of crime in Pennsylvania; administers Services administers rights and services to victims of crime in Pennsylvania; administers
the Victims Compensation Assistance Program and provides a statewide education effort the Victims Compensation Assistance Program and provides a statewide education effort
to victim service professionals and outreach to the public. The VCAP program serves as to victim service professionals and outreach to the public. The VCAP program serves as
the designated payment source for sexual-assault forensic examinations. the designated payment source for sexual-assault forensic examinations.
4 Resources 4 Resources
Resources Resources
The Office of the Victim Advocate The Office of the Victim Advocate
http://www.pbpp.state.pa.us/ova/site/default.asp http://www.pbpp.state.pa.us/ova/site/default.asp
Board of Probation and Parole Board of Probation and Parole
1101 S. Front Street 1101 S. Front Street
Suite 5200 Suite 5200
Phone: 800.563.6399 Phone: 800.563.6399
The Office of the Victim Advocate was created by the Victim Advocate Law, Act 8 of the The Office of the Victim Advocate was created by the Victim Advocate Law, Act 8 of the
1995 Special Legislative Session on Crime. The purpose of the Victim Advocate is to 1995 Special Legislative Session on Crime. The purpose of the Victim Advocate is to
represent the rights and interests of crime victims before the Board of Probation and represent the rights and interests of crime victims before the Board of Probation and
Parole and the Department of Corrections. In addition, the Office of the Victim Advocate Parole and the Department of Corrections. In addition, the Office of the Victim Advocate
also provides notification to crime victims of the potential for inmate release and opportunity also provides notification to crime victims of the potential for inmate release and opportunity
to provide testimony, notification of the inmates movement within the correctional system, to provide testimony, notification of the inmates movement within the correctional system,
referrals for crime victims to local programs, basic crisis intervention and support, general referrals for crime victims to local programs, basic crisis intervention and support, general
information on the status and location of the inmate as allowed by law, and notification of information on the status and location of the inmate as allowed by law, and notification of
the expiration of an inmates maximum sentence or date of execution, if applicable, as well the expiration of an inmates maximum sentence or date of execution, if applicable, as well
as preparation of a victim who chooses to witness an execution. as preparation of a victim who chooses to witness an execution.
The Office of the Victim Advocate offers several programs to assist victims of crime. These The Office of the Victim Advocate offers several programs to assist victims of crime. These
include: include:
The Mediation Program for Victims of Violent Crime provides an opportunity for Victims The Mediation Program for Victims of Violent Crime provides an opportunity for Victims
of Violent Crime to meet with their offender, express their feelings directly to the offender, of Violent Crime to meet with their offender, express their feelings directly to the offender,
and to ask questions that have never been answered. It provides an opportunity for victims and to ask questions that have never been answered. It provides an opportunity for victims
to regain power or say what needs to be said. It also gives the offender a chance to tell to regain power or say what needs to be said. It also gives the offender a chance to tell
his/her story and to accept responsibility for the crime. This may be the first time that his/her story and to accept responsibility for the crime. This may be the first time that
both the victim and the offender have engaged in a dialogue about the offense with each both the victim and the offender have engaged in a dialogue about the offense with each
other. A face-to-face meeting is an opportunity for the offender to recognize the real person other. A face-to-face meeting is an opportunity for the offender to recognize the real person
they have hurt. they have hurt.
The Address Confidentiality Program (ACP) is another of the programs administered by The Address Confidentiality Program (ACP) is another of the programs administered by
the Office of the Victim Advocate to assist victims of domestic violence, sexual assault or the Office of the Victim Advocate to assist victims of domestic violence, sexual assault or
stalking. stalking.
The program has two basic parts. First, the ACP provides a substitute address for victims The program has two basic parts. First, the ACP provides a substitute address for victims
who have moved to a new location unknown to their perpetrator. The second part of the who have moved to a new location unknown to their perpetrator. The second part of the
program provides participants with a free first-class confidential mail forwarding service. program provides participants with a free first-class confidential mail forwarding service.
Victims of domestic violence, sexual assault, stalking, and persons who live in the same Victims of domestic violence, sexual assault, stalking, and persons who live in the same
household as a participant may apply. ACP will determine if a victim meets eligibility. The household as a participant may apply. ACP will determine if a victim meets eligibility. The
ACP is not for everyone. A victim service professional from a domestic violence, sexual ACP is not for everyone. A victim service professional from a domestic violence, sexual
assault or a victim service program can help determine if ACP is right for a victim as part assault or a victim service program can help determine if ACP is right for a victim as part
of their safety plan. of their safety plan.
Restitution is a court-ordered financial obligation that can be in the form of out-of-pocket Restitution is a court-ordered financial obligation that can be in the form of out-of-pocket
expenses, loss of earnings, and/ or property loss. expenses, loss of earnings, and/ or property loss.
If you wish to receive restitution, you must submit your information, including medical If you wish to receive restitution, you must submit your information, including medical
bills or receipts, etc., to the District Attorneys office prior to sentencing. At the sentencing bills or receipts, etc., to the District Attorneys office prior to sentencing. At the sentencing
hearing, the District Attorney will ask the Judge to order restitution. In Pennsylvania, as hearing, the District Attorney will ask the Judge to order restitution. In Pennsylvania, as
restitution is mandatory, the Court must order restitution. restitution is mandatory, the Court must order restitution.
Resources
Chapter 12 5 5
Resources Resources
Pennsylvania District Attor neys Association

Attorneys Pennsylvania District Attor neys Association
Attorneys
http://www.pdaa.org/ http://www.pdaa.org/
2929 N. Front Street 2929 N. Front Street
Phone: (717)238-5416 Phone: (717)238-5416
The PENNSYLVANIA DISTRICT ATTORNEYS ASSOCIATION was formed in 1912 The PENNSYLVANIA DISTRICT ATTORNEYS ASSOCIATION was formed in 1912
for the purpose of providing uniformity and efficiency in the discharge of duties and functions for the purpose of providing uniformity and efficiency in the discharge of duties and functions
of Pennsylvanias 67 District Attorneys and their assistants. The Association today continues of Pennsylvanias 67 District Attorneys and their assistants. The Association today continues
to further its purpose through its extensive training program and by its reporting of legal to further its purpose through its extensive training program and by its reporting of legal
and legislative developments of importance to Pennsylvania prosecutors. and legislative developments of importance to Pennsylvania prosecutors.
The Sexual Offenders Assessment Board The Sexual Offenders Assessment Board
http://www.meganslaw.state.pa.us/soab/site/default.asp http://www.meganslaw.state.pa.us/soab/site/default.asp
101 South Front Street 101 South Front Street
Suite 5700 Suite 5700
Harrisburg, Pa 17104-2533 Harrisburg, Pa 17104-2533
The SOAB is an independent board of psychiatrists, psychologists, and criminal justice The SOAB is an independent board of psychiatrists, psychologists, and criminal justice
experts appointed by the Governor, according to statute, to assess all sex offenders convicted experts appointed by the Governor, according to statute, to assess all sex offenders convicted
under 42 Pa. C.S. 9791, commonly known as Megans Law. under 42 Pa. C.S. 9791, commonly known as Megans Law.
6 6 Resources
Chapter 12
Resources Resources
Reports Reports
Federal Bureau of Investigation. (1997). Uniform Crime Reports. Retrieved on April 10, Federal Bureau of Investigation. (1997). Uniform Crime Reports. Retrieved on April 10,
2006 from, http://www.fbi.gov/ucr/Cius_97/97crime/97crime.pdf. p. 26. 2006 from, http://www.fbi.gov/ucr/Cius_97/97crime/97crime.pdf. p. 26.
National Institute of Justice, Department of Justice. (2006). Extent, nature, and conse- National Institute of Justice, Department of Justice. (2006). Extent, nature, and conse-
quences of rape victimization: findings from the Violence Against Women survey. quences of rape victimization: findings from the Violence Against Women survey.
Retrieved May 9, 2006 from http://www.ncjrs.gov/pdffiles1/nij/210346.pdf. Retrieved May 9, 2006 from http://www.ncjrs.gov/pdffiles1/nij/210346.pdf.
National Victim Center and Crime Victims Research and Treatment Center. (1992). Rape National Victim Center and Crime Victims Research and Treatment Center. (1992). Rape
in America: A Report to the Nation University of South Carolina, Charleston in America: A Report to the Nation University of South Carolina, Charleston
Pennsylvania Supreme Court (2003). Executive Summary Of The Report On Racial And Pennsylvania Supreme Court (2003). Executive Summary Of The Report On Racial And
Gender Bias In The Justice System (pp.421-452). Harrisburg, PA: Author Gender Bias In The Justice System (pp.421-452). Harrisburg, PA: Author
Potential Applications of an existing offender typology to child molesting behaviour. Potential Applications of an existing offender typology to child molesting behaviour.
This doctoral dissertation written by Kimberly Gentry Sperber examines issues regard- This doctoral dissertation written by Kimberly Gentry Sperber examines issues regard-
ing child molestation. She provides an easy to understand look at current literature, ing child molestation. She provides an easy to understand look at current literature,
offender typology, and appropriate interventions. offender typology, and appropriate interventions.
Her work is available at: http://www.uc.edu/criminaljustice/graduate/Dissertations Her work is available at: http://www.uc.edu/criminaljustice/graduate/Dissertations
sperber.pdf#search=research%20on%20child%20molesters. sperber.pdf#search=research%20on%20child%20molesters.
Resources Resources
Rape Crisis
Rape Crisis Centers
Centers of
of Pennsylvania
Pennsylvania (By
(By County)
County) Rape Crisis
Rape Crisis Centers
Centers of
of Pennsylvania
Pennsylvania (By
(By County)
County)
ADAMS SURVIVORS, INC. ADAMS SURVIVORS, INC.

PO Box 3572 PO Box 3572
26A Springs St. (UPS) 26A Springs St. (UPS)
Gettysburg, PA 17325 Gettysburg, PA 17325
Business: (717) 334-0589 Business: (717) 334-0589

Hotline: (717) 334-9777 or (800) SUR-V106 Hotline: (717) 334-9777 or (800) SUR-V106
Fax: (717) 334-3576 Fax: (717) 334-3576
E-mail: survivor@adelphia.net E-mail: survivor@adelphia.net
ALLEGHENY THE CENTER FOR VICTIMS OF ALLEGHENY THE CENTER FOR VICTIMS OF
VIOLENCE AND CRIME VIOLENCE AND CRIME
900 5th Avenue 900 5th Avenue
Pittsburgh, PA 15219-4737 Pittsburgh, PA 15219-4737
Business: (412) 350- 1975 Business: (412) 350- 1975

Hotline: (412) 392-8582 Hotline: (412) 392-8582
Fax: (412) 350-1976 Fax: (412) 350-1976
E-mail: information@cvvc.org E-mail: information@cvvc.org
PITTSBURGH ACTION AGAINST RAPE PITTSBURGH ACTION AGAINST RAPE

81 South 19th Street 81 South 19th Street
Pittsburgh, PA 15203 Pittsburgh, PA 15203

Hotline: (866) 363-7273 Hotline: (866) 363-7273
Fax: (412) 431-0913 Fax: (412) 431-0913
ARMSTRONG HELPING ALL VICTIMS IN NEED ARMSTRONG HELPING ALL VICTIMS IN NEED
P.O. Box 983 P.O. Box 983
325 Arch Street (UPS only) 325 Arch Street (UPS only)
Kittanning, PA 16201 Kittanning, PA 16201

Hotline: (800) 841-8881 or (724) 548-8888 Hotline: (800) 841-8881 or (724) 548-8888
Fax: (742) 543-7410 Fax: (742) 543-7410
8 Resources 8 Resources
Resources Resources
BEAVER WOMENS CENTER OF BEAVER COUNTY BEAVER WOMENS CENTER OF BEAVER COUNTY
160 3rd St. (UPS only) 160 3rd St. (UPS only)
Beaver, PA 15009 Beaver, PA 15009

Hotline: (724) 775-0131 Hotline: (724) 775-0131
Fax: (724) 775-2750 Fax: (724) 775-2750
BEFORD YOUR SAFE HAVEN, INC. BEFORD YOUR SAFE HAVEN, INC.
10241 Lincoln Highway 10241 Lincoln Highway
Everett, PA 15537-6915 Everett, PA 15537-6915

Hotline: (800) 555-5671 Hotline: (800) 555-5671
Fax: (814) 623-7187 Fax: (814) 623-7187
BERKS BERKS WOMEN IN CRISIS BERKS BERKS WOMEN IN CRISIS

645 Penn Street, Second Floor 645 Penn Street, Second Floor
Reading, PA 19601 Reading, PA 19601

Hotline: (610) 372-9540- English Hotline: (610) 372-9540- English
Hotline: (610) 372-7463-Spanish Hotline: (610) 372-7463-Spanish
Fax: (610) 372-4188 Fax: (610) 372-4188
E-mail: Peace@berkswomenincrisis.org E-mail: Peace@berkswomenincrisis.org
BLAIR FAMILY SERVICES, INC. BLAIR FAMILY SERVICES, INC.

2022 Broad Avenue 2022 Broad Avenue
Altoona, PA 16601 Altoona, PA 16601

Fax: (814) 944-8701 Fax: (814) 944-8701
BRADFORD ABUSE AND RAPE CRISIS CENTER BRADFORD ABUSE AND RAPE CRISIS CENTER
100 Grant St. (UPS only) 100 Grant St. (UPS only)
Towanda, PA 18848-0186 Towanda, PA 18848-0186

Hotline: 911 Hotline: 911
Fax: (570) 265-0918 Fax: (570) 265-0918
E-mail: arcc@epix.net E-mail: arcc@epix.net
Resources
Chapter 12 9 9
Resources Resources
BUCKS NETWORK OF VICTIM ASSISTANCE BUCKS NETWORK OF VICTIM ASSISTANCE

2370 York Road, Suite B1 2370 York Road, Suite B1
Jamison, PA 18929 Jamison, PA 18929
Business (215) 343-6543 Business (215) 343-6543

Hotline (800) 675-6900 Hotline (800) 675-6900
Fax (215) 343-6260 Fax (215) 343-6260
TTY (215) 343-6260 TTY (215) 343-6260
E-mail novainfo@novabucks.org E-mail novainfo@novabucks.org
BUTLER VICTIMS OUTREACH INTERVENTION CENTER BUTLER VICTIMS OUTREACH INTERVENTION CENTER
P.O. Box 293 Evans City, PA 16033 (Corporate Office) P.O. Box 293 Evans City, PA 16033 (Corporate Office)
111 S. Cliff St. Rear Butler, PA 16001 (Administrative Office) 111 S. Cliff St. Rear Butler, PA 16001 (Administrative Office)
Business: (724) 776-5910 Cranberry Business: (724) 776-5910 Cranberry

(724) 283-8700 Butler (724) 283-8700 Butler
Hotline : (800) 400-8551 Hotline : (800) 400-8551
Fax: (724) 776-6781 Cranberry Fax: (724) 776-6781 Cranberry
(724) 283-8760 Butler (724) 283-8760 Butler
CAMBRIA VICTIM SERVICES, INC. CAMBRIA VICTIM SERVICES, INC.

638 Ferndale Avenue 638 Ferndale Avenue
Johnstown, PA 15905-3946 Johnstown, PA 15905-3946

Hotline: (814) 288-4961 or (800) 755-1983 after 5 Hotline: (814) 288-4961 or (800) 755-1983 after 5
Fax: (814) 288-3904 Fax: (814) 288-3904
CAMERON CAPSEA , INC. ( ELK County Satellite Office) CAMERON CAPSEA , INC. ( ELK County Satellite Office)
PO Box 464 PO Box 464
Ridgeway,PA 15853 Ridgeway,PA 15853

Hotline: (814) 486-0952 Hotline: (814) 486-0952
E-mail: elkcapsea@alltell.net E-mail: elkcapsea@alltell.net
CARBON VICTIMS RESOURCE CENTER 2 CARBON VICTIMS RESOURCE CENTER 2

(Luzerne County Satellite Office) (Luzerne County Satellite Office)
616 North Street 616 North Street
Jim Thorpe, PA 18229 Jim Thorpe, PA 18229

Hotline: (570) 325-9641 or (866)-206-9050 - Toll free Hotline: (570) 325-9641 or (866)-206-9050 - Toll free
Fax: (570) 325-9643 Fax: (570) 325-9643
10 10 Resources
Chapter 12
Resources Resources
CENTRE CENTRE COUNTY WOMENS CENTRE CENTRE COUNTY WOMENS

RESOURCE CENTER, INC. RESOURCE CENTER, INC.
140 W. Nittany Avenue 140 W. Nittany Avenue
State College, PA 16801 State College, PA 16801

Hotline: (814) 234-5050 or (877) 234-5050-Toll Free Hotline: (814) 234-5050 or (877) 234-5050-Toll Free
Fax: (814) 238-4449 Fax: (814) 238-4449
Information: (814) 234-5222 Information: (814) 234-5222
CHESTER THE CRIME VICTIMS CENTER OF CHESTER CHESTER THE CRIME VICTIMS CENTER OF CHESTER
COUNTY, INC. COUNTY, INC.
236 W. Market Street 236 W. Market Street
West Chester, PA 19382-2903 West Chester, PA 19382-2903

Hotline: (610) 692-7273 Hotline: (610) 692-7273
Fax: (610) 692-4959 Fax: (610) 692-4959
CLARION PASSAGES, INC. CLARION PASSAGES, INC.

1300R East Main Street 1300R East Main Street
Clarion, PA 16214 Clarion, PA 16214

Hotline: (800) 793-3620 Hotline: (800) 793-3620
Fax: (814) 226-5766 Fax: (814) 226-5766
E-mail: passages@clarion-net.com E-mail: passages@clarion-net.com
CLEARFIED PASSAGES, INC 2 (Clarion Co. Satellite office) CLEARFIED PASSAGES, INC 2 (Clarion Co. Satellite office)
90 Beaver Drive, Suite 20 D 90 Beaver Drive, Suite 20 D
Dubois, PA 15801 Dubois, PA 15801

Hotline: (800) 793-3620 Hotline: (800) 793-3620
Fax: (814) 371-9679 Fax: (814) 371-9679
E-mail: passagesinc@usachoice.net E-mail: passagesinc@usachoice.net
CLINTON CLINTON COUNTY WOMENS CENTER CLINTON CLINTON COUNTY WOMENS CENTER
34 W. Main Street 34 W. Main Street
Lock Haven, PA 17745 Lock Haven, PA 17745

Hotline: (570) 748-9509 Fax: (570) 748-9549 Hotline: (570) 748-9509 Fax: (570) 748-9549
E-mail: ccwcsafe@cub.kcnet.org E-mail: ccwcsafe@cub.kcnet.org
Resources
Chapter 12 11 11
Resources Resources
COLUMBIA THE WOMENS CENTER, INC. OF COLUMBIA THE WOMENS CENTER, INC. OF
COLUMBIA/MONTOUR COLUMBIA/MONTOUR
111 N. Market Street 111 N. Market Street
Bloomsburg, PA 17815 Bloomsburg, PA 17815

Fax: (570) 784-6680 Fax: (570) 784-6680
E-mail: womenctr1@verizon.net E-mail: womenctr1@verizon.net
CRAWFORD WOMENS SERVICES, INC. CRAWFORD WOMENS SERVICES, INC.

204 Spring St. (UPS only) 204 Spring St. (UPS only)
Meadville, PA 16335 Meadville, PA 16335
Business: (814) 724-4637 or (814) 333-1058 Business: (814) 724-4637 or (814) 333-1058
B Hotline: (814) 333-9766 or (888) 881-0189 B Hotline: (814) 333-9766 or (888) 881-0189
Leg. Advocate: (814) 336-2081 Leg. Advocate: (814) 336-2081
Fax: (814) 337-4394 Fax: (814) 337-4394
Titusville: (814) 827-7276 Titusville: (814) 827-7276
Fax: (814) 827-9076 Fax: (814) 827-9076
CUMBERLAND YWCA OF CARLISLE CUMBERLAND YWCA OF CARLISLE

SEXUAL ASSAULT/RAPE CRISIS SEXUAL ASSAULT/RAPE CRISIS
SERVICES OF CUMBERLAND COUNTY SERVICES OF CUMBERLAND COUNTY
301 G Street 301 G Street
Carlisle, PA 17013-1389 Carlisle, PA 17013-1389

YWCA: (717) 243-3818 YWCA: (717) 243-3818
Hotline: (888) 727-2877 Hotline: (888) 727-2877
Fax: (717) 243-3948 Fax: (717) 243-3948
E-mail: info@ ywcacarlisle.org E-mail: info@ ywcacarlisle.org
DAUPHIN YWCA VIOLENCE INTERVENTION PREVENTION DAUPHIN YWCA VIOLENCE INTERVENTION PREVENTION
PROGRAM PROGRAM
1101 Market Street 1101 Market Street

Fax: (717) 234-1779 Fax: (717) 234-1779
12 12 Resources
Chapter 12
Resources Resources
DELAWARE DELAWARE COUNTY WOMEN AGAINST RAPE DELAWARE DELAWARE COUNTY WOMEN AGAINST RAPE
204 South Avenue (UPS only) 204 South Avenue (UPS only)
Media, PA 19063 Media, PA 19063
Business: (610) 566-5866 or (610) 566-7954 or Business: (610) 566-5866 or (610) 566-7954 or
(610) 566-4386 (610) 566-4386
Hotline: (610) 566-4342 Hotline: (610) 566-4342
Fax: (610) 566-6896 Fax: (610) 566-6896
E-mail: Delcowarjd@aol.com E-mail: Delcowarjd@aol.com
ELK CAPSEA ELK CAPSEA

28 Morgan Ave. (Fed-Ex purposes only) 28 Morgan Ave. (Fed-Ex purposes only)
Ridgway, PA 15853 Ridgway, PA 15853

Fax: (814) 772-9270 Fax: (814) 772-9270
E-mail: elkcapsea@alltell.net E-mail: elkcapsea@alltell.net
ERIE CRIME VICTIM CENTER OF ERIE COUNTY, INC. ERIE CRIME VICTIM CENTER OF ERIE COUNTY, INC.
125 W 18th Street 125 W 18th Street
Erie, PA 16501 Erie, PA 16501

Hotline: (800) 352-7273 Hotline: (800) 352-7273
Fax: (814) 455-9300 Fax: (814) 455-9300
E-mail: supor@cvcerie.org E-mail: supor@cvcerie.org
109 West Fayette Street 109 West Fayette Street

Uniontown, PA 15401 Uniontown, PA 15401

Hotline: (724) 437-3737 Hotline: (724) 437-3737
Fax: (724) 437-6097 Fax: (724) 437-6097
E-mail: cvcfayette@cvc.fayette.org E-mail: cvcfayette@cvc.fayette.org
FOREST SEE WARREN FOR ADDRESS FOREST SEE WARREN FOR ADDRESS
412 Elm St. 412 Elm St.
Tionesta, PA 16353 (UPS only) Tionesta, PA 16353 (UPS only)

Fax: (814) 755-7881 Fax: (814) 755-7881
Resources
Chapter 12 13 13
Resources Resources
FRANKLIN, WIN / VICTIM SERVICES FRANKLIN, WIN / VICTIM SERVICES

FULTON P.O. Box 25 FULTON P.O. Box 25
156 E. Queen St. (UPS only) 156 E. Queen St. (UPS only)
Chambersburg, PA 17201 Chambersburg, PA 17201
201-A E. North St. (UPS only for Fulton) 201-A E. North St. (UPS only for Fulton)
McConnellsburg, PA 17233 McConnellsburg, PA 17233

Fax: (717) 264-3168 Fax: (717) 264-3168
E-mail: bac@winservices.org E-mail: bac@winservices.org
GREENE SEE WASHINGTON FOR ADDRESS GREENE SEE WASHINGTON FOR ADDRESS

Hotline: (888) 480-7283 Hotline: (888) 480-7283
Fax: (724) 627-9761 Fax: (724) 627-9761
HUNTINGDON HUNTINGDON HOUSE HUNTINGDON HUNTINGDON HOUSE

401 Seventh St. (UPS only) 401 Seventh St. (UPS only)
Huntingdon, PA 16652 Huntingdon, PA 16652

Hotline: (814) 643-1190 Hotline: (814) 643-1190
Fax: (814) 643-2419 Fax: (814) 643-2419
E-mail: huntingdonhouse@adelphia.net E-mail: huntingdonhouse@adelphia.net
INDIANA ALICE PAUL HOUSE INDIANA ALICE PAUL HOUSE

1743 Saltburg Ave. (UPS only) 1743 Saltburg Ave. (UPS only)
Indiana, PA 15701 Indiana, PA 15701

Fax: (724) 349-7883 Fax: (724) 349-7883
JEFFERSON PASSAGES, Inc 3 (Clarion Co. Satellite Office) JEFFERSON PASSAGES, Inc 3 (Clarion Co. Satellite Office)
18 Western Avenue 18 Western Avenue
Brookville, PA 15825 Brookville, PA 15825

Hotline: (800) 793-3620 Hotline: (800) 793-3620
Fax: (814) 849-8628 Fax: (814) 849-8628
E-mail: passages@usachoice.net E-mail: passages@usachoice.net
14 14 Resources
Chapter 12
Resources Resources
JUNIATA THE ABUSE NETWORK (Mifflin Co. Satellite Office) JUNIATA THE ABUSE NETWORK (Mifflin Co. Satellite Office)
Lewistown, PA 17044 Lewistown, PA 17044

Hotline: (717) 242-2444 Hotline: (717) 242-2444
Fax: (717) 242-0871 Fax: (717) 242-0871
E-mail: tan@abusenetwork.org E-mail: tan@abusenetwork.org
LACKAWANNA WOMENS RESOURCE CENTER, INC. LACKAWANNA WOMENS RESOURCE CENTER, INC.
Box 975 Box 975
620 Madison Ave. Scranton, PA 18510 (UPS only) 620 Madison Ave. Scranton, PA 18510 (UPS only)
Scranton, PA 18501 Scranton, PA 18501

Hotline: (570) 346-4671 Hotline: (570) 346-4671
Fax: (570) 346-3413 Fax: (570) 346-3413
E-mail: wrcgeneral@wrcnepa.org E-mail: wrcgeneral@wrcnepa.org
LANCASTER SEXUAL ASSAULT PREVENTION AND LANCASTER SEXUAL ASSAULT PREVENTION AND
COUNSELING CENTER COUNSELING CENTER
110 N. Lime Street 110 N. Lime Street
Lancaster, PA 17602 Lancaster, PA 17602
Business Business
(YWCA): (717) 393-1735 (YWCA): (717) 393-1735
Hotline: (717) 392-7273 Hotline: (717) 392-7273
Fax: (717) 391-6707 Fax: (717) 391-6707
LAWRENCE CRISIS SHELTER OF LAWRENCE COUNTY LAWRENCE CRISIS SHELTER OF LAWRENCE COUNTY
1218 W. State St. 1218 W. State St.
New Castle, PA 16101 New Castle, PA 16101

Fax: (724) 652-9222 Fax: (724) 652-9222
E-mail: cslcmlp@adelphia.net E-mail: cslcmlp@adelphia.net
LEBANON SEXUAL ASSAULT RESOURCE AND LEBANON SEXUAL ASSAULT RESOURCE AND
COUNSELING CENTER COUNSELING CENTER
615 Cumberland St. 615 Cumberland St.
Lebanon, PA 17042 Lebanon, PA 17042

Hotline: (717) 272-5308 Hotline: (717) 272-5308
Fax: (717) 270-6987 Fax: (717) 270-6987
Resources
Chapter 12 15 15
Resources Resources
LEHIGH CRIME VICTIMS COUNCIL OF LEHIGH VALLEY, INC. LEHIGH CRIME VICTIMS COUNCIL OF LEHIGH VALLEY, INC.
801 Hamilton Mall Suite 300 801 Hamilton Mall Suite 300
Allentown, PA 18101 Allentown, PA 18101

Hotline: (610) 437-6611 Hotline: (610) 437-6611
Victim/ Victim/
Witness Dept.: (610) 433-4588 Witness Dept.: (610) 433-4588
Fax: (610) 437-9394 Fax: (610) 437-9394
E-mail: cvclv@enter.net E-mail: cvclv@enter.net
LUZERNE VICTIMS RESOURCE CENTER LUZERNE VICTIMS RESOURCE CENTER

85 S. Main Street 85 S. Main Street
Wilkes-Barre, PA 18701 Wilkes-Barre, PA 18701

Fax: (570) 823-9115 Fax: (570) 823-9115
E-mail: support@vrnepa.org E-mail: support@vrnepa.org
LYCOMING YWCA - WISE OPTIONS LYCOMING YWCA - WISE OPTIONS

815 W. 4th Street 815 W. 4th Street
Williamsport, PA 17701 Williamsport, PA 17701

Hotline: (570) 323-8167 (for crisis calls only) Hotline: (570) 323-8167 (for crisis calls only)
Fax: (570) 322-3029 Fax: (570) 322-3029
MCKEAN YWCA VICTIMS RESOURCE CENTER MCKEAN YWCA VICTIMS RESOURCE CENTER
24 W. Corydon Street 24 W. Corydon Street
Bradford, PA 16701 Bradford, PA 16701

Fax: (814) 362-4638 Fax: (814) 362-4638
E-mail: vrcyw@verizon.net E-mail: vrcyw@verizon.net
MERCER AW/ARE, INC. MERCER AW/ARE, INC.

P.O. Box 612 (Physical: 559 Greenville Rd.) P.O. Box 612 (Physical: 559 Greenville Rd.)
Mercer, PA 16137 Mercer, PA 16137

Hotline: (888) 981-1457 Hotline: (888) 981-1457
Fax: (724) 662-1875 Fax: (724) 662-1875
Hotline and Hotline and
TTY: (724) 981-1457 TTY: (724) 981-1457
16 16 Resources
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Resources Resources
MIFFLIN THE ABUSE NETWORK MIFFLIN THE ABUSE NETWORK

217 E. Third St (UPS only) 217 E. Third St (UPS only)
Lewistown, PA 17044 Lewistown, PA 17044

Hotline: (717) 242 -2444 Hotline: (717) 242 -2444
Fax: (717) 242-0871 Fax: (717) 242-0871
E-mail: tan@abusenetwork.org E-mail: tan@abusenetwork.org
MONROE WOMENS RESOURCES OF MONROE COUNTY, INC. MONROE WOMENS RESOURCES OF MONROE COUNTY, INC.
P.O. Box 645 (215 W. Main Street) P.O. Box 645 (215 W. Main Street)
Delaware Water Gap, PA 18327 Delaware Water Gap, PA 18327

Hotline: (570) 421-4200 Hotline: (570) 421-4200
Fax: (570) 424-2094 Fax: (570) 424-2094
E-mail: womansresources@verizon.net E-mail: womansresources@verizon.net
MONTGOMERY VICTIM SERVICES CENTER OF MONTGOMERY VICTIM SERVICES CENTER OF

MONTGOMERY CO.,INC. MONTGOMERY CO.,INC.
18 W. Airy Street -Suite 100 18 W. Airy Street -Suite 100
Norristown, PA 19401 Norristown, PA 19401

Sexual Assault:(610) 277-5200 Sexual Assault:(610) 277-5200
Fax: (610) 277-6386 Fax: (610) 277-6386
E-mail: vsc@libertynet.org E-mail: vsc@libertynet.org
MONTOUR SEE COLUMBIA FOR ADDRESS MONTOUR SEE COLUMBIA FOR ADDRESS

Business/ Business/
Hotline: (570) 784-6631 Hotline: (570) 784-6631
Hotline: (800) 544- 8293 Hotline: (800) 544- 8293
NORTHAMPTON SEE LEHIGH FOR ADDRESS NORTHAMPTON SEE LEHIGH FOR ADDRESS

Hotline: (610) 437-6611 Hotline: (610) 437-6611
Victim/ Victim/
Witness Dept.: (610) 433-4588 Witness Dept.: (610) 433-4588
Resources
Chapter 12 17 17
Resources Resources
NORTHUMBERLAND SEE UNION FOR ADDRESS NORTHUMBERLAND SEE UNION FOR ADDRESS
Business/ Business/
Hotline: (570) 644-4488 Hotline: (570) 644-4488
Fax: (570) 524-9367 (Union County) Fax: (570) 524-9367 (Union County)
Email: svwit@svwit.org Email: svwit@svwit.org
PERRY SEE DAUPHIN FOR ADDRESS PERRY SEE DAUPHIN FOR ADDRESS

Hotline: (800) 654-1211 Hotline: (800) 654-1211
Fax: (717) 238-4533 Fax: (717) 238-4533
PHILADELPHIA WOMEN ORGANIZED AGAINST RAPE PHILADELPHIA WOMEN ORGANIZED AGAINST RAPE
1233 Locust Street, Suite 202 1233 Locust Street, Suite 202
Philadelphia, PA 19107 Philadelphia, PA 19107

Hotline: (215) 985-3333 Hotline: (215) 985-3333
Fax: (215) 985-9111 Fax: (215) 985-9111
E-mail: carole@woar.org E-mail: carole@woar.org
PIKE SURVIVORS RESOURCES, INC. PIKE SURVIVORS RESOURCES, INC.

500 W. Harford St. 500 W. Harford St.
Milford, PA 18337 Milford, PA 18337

Hotline: (570) 296-4357 Hotline: (570) 296-4357
Fax: (570) 296-4410 Fax: (570) 296-4410
E-mail: surv@ptd.net E-mail: surv@ptd.net
POTTER A WAY OUT: DOMESTIC VIOLENCE AND SEXUAL POTTER A WAY OUT: DOMESTIC VIOLENCE AND SEXUAL
ASSAULT SERVICES ASSAULT SERVICES
110 E. Third St. (UPS only) 110 E. Third St. (UPS only)
Coudersport, PA 16915 Coudersport, PA 16915

Hotline: (814) 274-0240 or (877)-334-3136 Hotline: (814) 274-0240 or (877)-334-3136
Fax: (814) 274-2230 Fax: (814) 274-2230
E-mail: awayout@zitomedia.net E-mail: awayout@zitomedia.net
18 18 Resources
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Resources Resources
SCHUYLKILL RAPE & VICTIM ASSISTANCE CENTER OF SCHUYLKILL RAPE & VICTIM ASSISTANCE CENTER OF
SCHUYLKILL CO. SCHUYLKILL CO.
368 S. Centre Street 368 S. Centre Street
Pottsville, PA 17901 Pottsville, PA 17901

Fax: (570) 628-2001 Fax: (570) 628-2001
E-mail: rvac@uplink.net E-mail: rvac@uplink.net
SNYDER SVWIT SEE UNION FOR ADDRESS SNYDER SVWIT SEE UNION FOR ADDRESS
Business/ Business/
Hotline: (570) 374-7773 Hotline: (570) 374-7773
Fax: (570) 524-9367 Fax: (570) 524-9367
E-mail: svwit@svwit.org E-mail: svwit@svwit.org
SOMERSET VICTIM SERVICES, INC. 3 (Cambria Co. Satellite Office) SOMERSET VICTIM SERVICES, INC. 3 (Cambria Co. Satellite Office)
427 Westridge Road 427 Westridge Road
Somerset, PA 15501 Somerset, PA 15501

Hotline after 5pm Hotline after 5pm
Fax: (814) 443-6807 Fax: (814) 443-6807
SULLIVAN VICTIMS SERVICES SULLIVAN VICTIMS SERVICES

Box 272 Box 272
Main Street (UPS only) Main Street (UPS only)
Laporte, PA 18626 Laporte, PA 18626

Hotline: (570) 946-4215 Hotline: (570) 946-4215
Fax: (570) 946-4570 Fax: (570) 946-4570
E-mail: scvs@epix.net E-mail: scvs@epix.net
Resources
Chapter 12 19 19
Resources Resources
SUSQUEHANNA WOMENS RESOURCE CENTER, INC. SUSQUEHANNA WOMENS RESOURCE CENTER, INC.
(Lackawanna Co. Satellite Office) (Lackawanna Co. Satellite Office)
Montrose, PA 18801 Montrose, PA 18801

Hotline: (800) 257-5765 Hotline: (800) 257-5765
Fax: (570) 346-3413 Fax: (570) 346-3413
E-mail: wrcmont@epix.net E-mail: wrcmont@epix.net
TIOGA HAVEN OF TIOGA COUNTY TIOGA HAVEN OF TIOGA COUNTY

6 Old Tioga St. P.O. Box 170 6 Old Tioga St. P.O. Box 170
Wellsboro, PA 16901 Wellsboro, PA 16901

Fax: (570) 724-1361 Fax: (570) 724-1361
E-mail: havenoftioga2@epix.net E-mail: havenoftioga2@epix.net
UNION SUSQUEHANNA VALLEY WOMEN IN TRANSITION UNION SUSQUEHANNA VALLEY WOMEN IN TRANSITION
P.O. Box 170 42 S. 5th Street (Fed-Ex purposes only) P.O. Box 170 42 S. 5th Street (Fed-Ex purposes only)
Lewisburg, PA 17837 Lewisburg, PA 17837
Fax: (570) 524-9367 Fax: (570) 524-9367
E-mail: svwit@svwit.org E-mail: svwit@svwit.org
VENANGO VICTIMS RESOURCE CENTER VENANGO VICTIMS RESOURCE CENTER

716 East Second Street 716 East Second Street
Oil City, PA 16301 Oil City, PA 16301
Business: (814) 6774005 Business: (814) 6774005

Fax: (814) 726-1587 Fax: (814) 726-1587
E-mail: vicrescen@sconline.net E-mail: vicrescen@sconline.net
WARREN A SAFE PLACE WARREN A SAFE PLACE

300 Hospital Drive 300 Hospital Drive
North Warren, PA 16365 North Warren, PA 16365

Fax: (814) 726-1587 Fax: (814) 726-1587
E-mail: safeplace@westpa.net E-mail: safeplace@westpa.net
20 20 Resources
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Resources Resources
WASHINGTON (1) SPHS C.A.R.E. CENTER WASHINGTON (1) SPHS C.A.R.E. CENTER
62 E. Wheeling Street 62 E. Wheeling Street
Washington, PA 15301 Washington, PA 15301

S.T.T.A.R.S. S.T.T.A.R.S.
Hotline: (888) 480-7283 Hotline: (888) 480-7283
Fax: (724) 228-2277 Fax: (724) 228-2277
E-mail: mascara@sphs.org E-mail: mascara@sphs.org
(2) SPHS C.A.R.E. CENTER S.T.T.A.R.S. PROGRAM (2) SPHS C.A.R.E. CENTER S.T.T.A.R.S. PROGRAM
351 West Beau Street, Suite 201 351 West Beau Street, Suite 201

Hotline: (888) 480-7283 Hotline: (888) 480-7283
Fax: (724) 229-5711 Fax: (724) 229-5711
E-mail: kmckevitt@sphs.org E-mail: kmckevitt@sphs.org
WAYNE VICTIMS INTERVENTION PROGRAM WAYNE VICTIMS INTERVENTION PROGRAM

1006 Church St. (UPS only) 1006 Church St. (UPS only)
Honesdale, PA 18431 Honesdale, PA 18431

Hotline: (570) 253-4401 or Hotline: (570) 253-4401 or
(800) 698-4VIP, Regional only (800) 698-4VIP, Regional only
Fax: (570) 253-1322 Fax: (570) 253-1322
WESTMORELAND BLACKBURN CENTER AGAINST DOMESTIC & WESTMORELAND BLACKBURN CENTER AGAINST DOMESTIC &
SEXUAL VIOLENCE SEXUAL VIOLENCE
1011 Old Salem Road, Ste 202 (Fed-Ex purposes only) 1011 Old Salem Road, Ste 202 (Fed-Ex purposes only)
Greensburg, PA 15601 Greensburg, PA 15601

Hotline: (724) 836-1122 (in Greensburg area) Hotline: (724) 836-1122 (in Greensburg area)
(888) 832-2272 (outside of Greensburg) (888) 832-2272 (outside of Greensburg)
Fax: (724) 837-3676 Fax: (724) 837-3676
Resources
Chapter 12 21 21
Resources Resources
WYOMING VICTIMS RESOURCE CENTER 3 WYOMING VICTIMS RESOURCE CENTER 3

(Luzerne Co. Satellite Office) (Luzerne Co. Satellite Office)
119 Warren Street 119 Warren Street
Tunkhannock, PA 18657 Tunkhannock, PA 18657

Hotline: (570) 836-5544 Hotline: (570) 836-5544
Fax: (570) 836-3291 Fax: (570) 836-3291
E-mail: support@vrcnepa.org E-mail: support@vrcnepa.org
YORK VICTIM ASSISTANCE CENTER YORK VICTIM ASSISTANCE CENTER

York, PA 17405 York, PA 17405

Fax: (717) 846-6321 Fax: (717) 846-6321
E-mail: vac@netrax.net E-mail: vac@netrax.net
OTHER CONTACTS
CONTACTS OTHER CONTACTS
CONTACTS
PENNSYLVANIA COALITION AGAINST RAPE PENNSYLVANIA COALITION AGAINST RAPE

Contact: Lynn Carson, Judicial Project Specialist Contact: Lynn Carson, Judicial Project Specialist
125 N. Enola Drive 125 N. Enola Drive
Enola, PA 17025 Enola, PA 17025

E-mail: lcarson@pcar.org E-mail: lcarson@pcar.org
22 22 Resources
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Resources Resources
Pennsylvanias Pennsylvanias
Pennsylvanias
Childrens Advocacy Centers (CACs) and Pennsylvanias
Childrens Advocacy Centers (CACs) and
Childrens Advocacy Centers (CACs) and Childrens Advocacy Centers (CACs) and
Multidisciplinary
Multidisciplinary Teams (MDTS)
Teams (MDTS) Multidisciplinary
Multidisciplinary Teams (MDTS)
Teams (MDTS)
ACCREDITED MEMBERS ACCREDITED MEMBERS
ALLEGHENY ALLEGHENY COUNTY CHILDRENS ALLEGHENY ALLEGHENY COUNTY CHILDRENS

ADVOCACY CENTER (Accredited) ADVOCACY CENTER (Accredited)
Contact: Joan Mills Contact: Joan Mills
A Childs Place at Mercy A Childs Place at Mercy
1400 Locust Street 1400 Locust Street
Suite 307 MHC Suite 307 MHC
Business: (412) 232-7200-7388 Business: (412) 232-7200-7388

Fax: (412) 232-7389 Fax: (412) 232-7389
E-mail: JMills@mercy.pmhs.org E-mail: JMills@mercy.pmhs.org
PITTSBURGH CHILD ADVOCACY CENTER PITTSBURGH CHILD ADVOCACY CENTER

(Accredited) (Accredited)
Childrens Hospital of Pittsburgh Childrens Hospital of Pittsburgh
3705-5th Avenue 3705-5th Avenue

Fax: (412) 692-5743 Fax: (412) 692-5743
DAUPHIN CHILDRENS RESOURCE CENTER OF DAUPHIN CHILDRENS RESOURCE CENTER OF

PINNACLEHEALTH SYSTEM (Accredited) PINNACLEHEALTH SYSTEM (Accredited)
Contact: Teresa Smith, ED Contact: Teresa Smith, ED
Community Health Center Community Health Center
1st Floor 1st Floor
2645 North 3rd Street 2645 North 3rd Street
Fax: (717) 782-6801 Fax: (717) 782-6801
E-mail: tsmith@pinnaclehealth.org E-mail: tsmith@pinnaclehealth.org
Web: www.pinnaclehealth.org/crc Web: www.pinnaclehealth.org/crc
Resources Resources
DELAWARE DELAWARE COUNTY CHILD DELAWARE DELAWARE COUNTY CHILD

SEXUAL ABUSE CENTER (Accredibility Eligible) SEXUAL ABUSE CENTER (Accredibility Eligible)
Contact: Pam Hardy, Program Director Contact: Pam Hardy, Program Director
100 West 6th Street 100 West 6th Street
Ground Floor Ground Floor
Media, PA 19063 Media, PA 19063

Fax: (610) 591-0481 Fax: (610) 591-0481
E-mail: hardyp@co.delaware.pa.us E-mail: hardyp@co.delaware.pa.us
ERIE ERIE COUNTY CHILD ADVOCACY CENTER ERIE ERIE COUNTY CHILD ADVOCACY CENTER
Contact: Dr. Judith Smith, Executive Director Contact: Dr. Judith Smith, Executive Director
1527 Sassafras Street 1527 Sassafras Street
Suite 100 Suite 100
Erie, PA 16502 Erie, PA 16502

Fax: (814) 451-0404 Fax: (814) 451-0404
E-mail: judy.smith@hamot.org E-mail: judy.smith@hamot.org
Web: www.cacerie.org Web: www.cacerie.org
LAWRENCE CHILDRENS ADVOCACY CENTER OF LAWRENCE LAWRENCE CHILDRENS ADVOCACY CENTER OF LAWRENCE
COUNTY, INC. (Accredibility Eligible) COUNTY, INC. (Accredibility Eligible)
Contact: Sue Ascione, ED Contact: Sue Ascione, ED
1001 E. Washington Street 1001 E. Washington Street
Suite 302 Suite 302
New Castle, PA 16101 New Castle, PA 16101

Fax: (724) 658-8810 Fax: (724) 658-8810
E-mail: lccac@adelphia.net E-mail: lccac@adelphia.net
Web: sascione@yahoo.com Web: sascione@yahoo.com
LEHIGH CHILD ADVOCACY CENTER OF LEHIGH COUNTY LEHIGH CHILD ADVOCACY CENTER OF LEHIGH COUNTY
Contact: Barbara Stauffer, ED Contact: Barbara Stauffer, ED
740 Hamilton Street 740 Hamilton Street
Allentown, PA 18101 Allentown, PA 18101
Business: (610) 770-9644 x 102 Business: (610) 770-9644 x 102

Fax: (610) 770-9626 Fax: (610) 770-9626
E-mail: bstauffer@caclc.org E-mail: bstauffer@caclc.org
24 24 Resources
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Resources Resources
PHILADELPHIA PHILADELPHIA CHILDRENS ALLIANCE (Accredited) PHILADELPHIA PHILADELPHIA CHILDRENS ALLIANCE (Accredited)
Contact: Chris Kirchner, ED Contact: Chris Kirchner, ED
4000 Chestnut Street 4000 Chestnut Street
2nd Floor 2nd Floor
Philadelphia, PA 19104 Philadelphia, PA 19104

Fax: (215) 387-9513 Fax: (215) 387-9513
E-mail: chris@philachildrensalliance.org E-mail: chris@philachildrensalliance.org
Web: www.philachildrensalliance.org Web: www.philachildrensalliance.org
ASSOCIA TE MEMBERS
ASSOCIATE ASSOCIA TE MEMBERS
ASSOCIATE
BERKS CHILDRENS ALLIANCE CENTER OF BERKS COUNTY BERKS CHILDRENS ALLIANCE CENTER OF BERKS COUNTY
(Associate Member) (Associate Member)
Contact: Rachel Jacobson, Dir Contact: Rachel Jacobson, Dir
222 North 12th Street 222 North 12th Street
Reading, PA 19604 Reading, PA 19604

Fax: (610) 898-1161 Fax: (610) 898-1161
E-mail: Cacofberks@comcast.net E-mail: Cacofberks@comcast.net
BUCKS CHILDRENS ADVOCACY CENTER OF BUCKS CHILDRENS ADVOCACY CENTER OF

BUCKS COUNTY (Associate Member) BUCKS COUNTY (Associate Member)
Contact: Barbara Clark, ED Contact: Barbara Clark, ED
2370 York Road, St. B-1 2370 York Road, St. B-1
Jamison, PA 18929 Jamison, PA 18929

Fax: (215) 343-6260 Fax: (215) 343-6260
E-mail: bclark@novabucks.org E-mail: bclark@novabucks.org
Contact: Nancy Morgan, CYS Contact: Nancy Morgan, CYS

4259 W. Swamp Rd, St. 200 4259 W. Swamp Rd, St. 200
Doylestown, PA 18901 Doylestown, PA 18901

E-mail: namorgan@co.bucks.pa.us E-mail: namorgan@co.bucks.pa.us
Resources
Chapter 12 25 25
Resources Resources
INDIANA CHILDRENS ADVOCACY CENTER OF INDIANA CHILDRENS ADVOCACY CENTER OF

INDIANA COUNTY (Associate Member) INDIANA COUNTY (Associate Member)
Contact: Kathy Moore, Coordinator Contact: Kathy Moore, Coordinator
617 Church Street 617 Church Street
Indiana, PA 15701 Indiana, PA 15701

Fax: (724) 349-1775 Fax: (724) 349-1775
E-mail: childadvocacyic@aol.com E-mail: childadvocacyic@aol.com
LACKAWANNA PEGASUS CHILD ADVOCACY CENTER LACKAWANNA PEGASUS CHILD ADVOCACY CENTER
(Associate Member) (Associate Member)
Contact: Debby Mendicino, ED or Dr. Andrea Taroli, MD Contact: Debby Mendicino, ED or Dr. Andrea Taroli, MD
44 North Scott Street 44 North Scott Street
Carbondale, PA 18407 Carbondale, PA 18407

Fax: (570) 282-4770 Fax: (570) 282-4770
E-mail: pegasuschild@echoes.net E-mail: pegasuschild@echoes.net
drt@echoes.net drt@echoes.net
CHILDRENS ADVOCACY CENTER OF CHILDRENS ADVOCACY CENTER OF

NORTHEASTERN PA (Associate Member) NORTHEASTERN PA (Associate Member)
Contact: Mary Ann LaPorta, ED or Cynthia Pintha, Admin Contact: Mary Ann LaPorta, ED or Cynthia Pintha, Admin
1710 Mulberry Street 1710 Mulberry Street
Scranton, PA 18510 Scranton, PA 18510

Fax: (570) 969-7387 Fax: (570) 969-7387
E-mail: cynthia.pintha@cmchealthsys.org E-mail: cynthia.pintha@cmchealthsys.org
maryann.laporta@cmchealthsys.org maryann.laporta@cmchealthsys.org
MONTGOMERY MONTGOMERY COUNTY CAC (Associate Member) MONTGOMERY MONTGOMERY COUNTY CAC (Associate Member)
Contact: Liz Socki, Co-Chair Contact: Liz Socki, Co-Chair
Montgomery County Children & Youth Montgomery County Children & Youth
324 King Street, 2nd fl. 324 King Street, 2nd fl.
Pottstown, PA 19464 Pottstown, PA 19464
Business: (610) 327-1588 x 4234 Business: (610) 327-1588 x 4234

Cell: (610) 322-4926 Cell: (610) 322-4926
E-mail: esocki@mail.montcopa.org E-mail: esocki@mail.montcopa.org
Contact: Det. Mark Wickersham Co-Chair Contact: Det. Mark Wickersham Co-Chair
Pottstown Police Dept. Pottstown Police Dept.
100 E. High Street 100 E. High Street
Pottstown, PA 19464 Pottstown, PA 19464
26 26 Resources
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Resources Resources

E-mail: pd104@pottstown.org E-mail: pd104@pottstown.org
NORTHUMBERLAND CHILDRENS ADVOCACY CENTER OF THE CENTRAL NORTHUMBERLAND CHILDRENS ADVOCACY CENTER OF THE CENTRAL
(ALSO SERVES SUSQUEHANNA VALLEY (Associate Member) (ALSO SERVES SUSQUEHANNA VALLEY (Associate Member)
UNION, SNYDER, Contact: Melissa Hummel, Coordinator and Dr. Pat Bruno, MD UNION, SNYDER, Contact: Melissa Hummel, Coordinator and Dr. Pat Bruno, MD
AND MONTOUR) c/o Janet Weis Childrens Hospital, Geisinger Medical Center AND MONTOUR) c/o Janet Weis Childrens Hospital, Geisinger Medical Center
Northumberland, PA 17857 Northumberland, PA 17857

Fax: (570) 473-8495 Fax: (570) 473-8495
E-mail: mahummel@geiser.edu E-mail: mahummel@geiser.edu
pbruno@ptd.net pbruno@ptd.net
WASHINGTON SPHS WASHINGTON COUNTY CHILDRENS WASHINGTON SPHS WASHINGTON COUNTY CHILDRENS
ADVOCACY CENTER (Associate Member) ADVOCACY CENTER (Associate Member)
Contact: Jennifer Lytton or Jeff Burks Mascara Contact: Jennifer Lytton or Jeff Burks Mascara
351 West Beau Street 351 West Beau Street
Suite 204 Suite 204

Fax: (724) 229-5711 Fax: (724) 229-5711
E-mail: jlytton@sphs.org E-mail: jlytton@sphs.org
mascara@sphs.orgwww.sphs.org mascara@sphs.orgwww.sphs.org
Web: www.sphs.org Web: www.sphs.org
DEVELOPING DEVELOPING
ADAMS ADAMS COUNTY CAC (Developing) ADAMS ADAMS COUNTY CAC (Developing)
Contact: Joddie Walker, ED or Jim Holler, Bd. President Contact: Joddie Walker, ED or Jim Holler, Bd. President
450 West Middle Street 450 West Middle Street
Gettysburg, PA 17325 Gettysburg, PA 17325

Fax: (717) 337-9880 Fax: (717) 337-9880
E-mail: jwalker@adamscountypacac.org E-mail: jwalker@adamscountypacac.org
jholler@adelphia.net jholler@adelphia.net
Web: www.adamscountypacac.org Web: www.adamscountypacac.org
Resources
Chapter 12 27 27
Resources Resources
LANCASTER LANCASTER COUNTY CAC TASK FORCE LANCASTER LANCASTER COUNTY CAC TASK FORCE
(Developing) (Developing)
Contact: John H. May, Esquire (CAC contact) Contact: John H. May, Esquire (CAC contact)
May, Metzger & Zimmerman, LLP May, Metzger & Zimmerman, LLP
49 North Duke Street 49 North Duke Street

Fax: (717) 299-5045 Fax: (717) 299-5045
E-mail: jhm@mmzlaw.com E-mail: jhm@mmzlaw.com
Contact: Dr. Cathy Hoshauer, MD or Kari Stanley Contact: Dr. Cathy Hoshauer, MD or Kari Stanley
Roseville Pediatrics Roseville Pediatrics
160 North Point Blvd. 160 North Point Blvd.
Suite 110 Suite 110

Fax: (717) 569-5213 Fax: (717) 569-5213
E-mail: doc4kidz@hotmail.com E-mail: doc4kidz@hotmail.com
knstanle@lancastergeneral.org knstanle@lancastergeneral.org
LUZERNE LUZERNE COUNTY CAC TASK FORCE (Developing) LUZERNE LUZERNE COUNTY CAC TASK FORCE (Developing)
Contact: Jackie Carroll, First ADA Contact: Jackie Carroll, First ADA
District Attorneys Office District Attorneys Office
Luzerne County Courthouse Luzerne County Courthouse
200 North River Street 200 North River Street
Wilkes Barre, PA 18702 Wilkes Barre, PA 18702
Business: 570-825-1676 Business: 570-825-1676

Fax: 570-825-1662 or 1572 Fax: 570-825-1662 or 1572
E-mail: Jackie.carroll@luzernecounty.org E-mail: Jackie.carroll@luzernecounty.org
POTTER POTTER COUNTY CHILDREN, YOUTH AND FAMILY POTTER POTTER COUNTY CHILDREN, YOUTH AND FAMILY
Contact: Joy Glassmire, Director Contact: Joy Glassmire, Director
Potter County Human Services Potter County Human Services
62 North Street 62 North Street
Roulette, PA 16746 Roulette, PA 16746

Fax: (814) 544-9062 Fax: (814) 544-9062
E-mail: jglassmire@pottercountyhumansvcs.org E-mail: jglassmire@pottercountyhumansvcs.org
28 28 Resources
Chapter 12
Resources Resources
YORK YORK COUNTY CHILD ADVOCACY CENTER YORK YORK COUNTY CHILD ADVOCACY CENTER
Contact: Paul Johnston, ED or Heidi Getsy, Forensic Int. Contact: Paul Johnston, ED or Heidi Getsy, Forensic Int.
28 S. Queen Street 28 S. Queen Street
York, PA 17403 York, PA 17403

Fax: (717) 718-3539 Fax: (717) 718-3539
E-mail: morgyj@netzero.com E-mail: morgyj@netzero.com
pjohnston@yorkcac.org pjohnston@yorkcac.org
Web: www.yorkcac.org Web: www.yorkcac.org
OTHER CONTACTS
CONTACTS OTHER CONTACTS
CONTACTS
BUCKS NORTHEAST REGIONAL CHILDRENS ADVOCACY BUCKS NORTHEAST REGIONAL CHILDRENS ADVOCACY
CENTER CENTER
Contact: Anne Lynn, Project Director Contact: Anne Lynn, Project Director
4 Terry Drive 4 Terry Drive
Suite 16 Suite 16
Newtown, PA 18940 Newtown, PA 18940
Business: (215) 860-3111 or 800-662-4124 Business: (215) 860-3111 or 800-662-4124

Fax: (215) 860-3112 Fax: (215) 860-3112
E-mail: anne.lynn@verizon.net E-mail: anne.lynn@verizon.net
Web: www.nca-online.nrcac/index.htm Web: www.nca-online.nrcac/index.htm
BERKS PENNSYLVANIA NETWORK OF CACS & MDTS BERKS PENNSYLVANIA NETWORK OF CACS & MDTS
Contact: Alison Gray Contact: Alison Gray
626 James Street 626 James Street
Erie, PA Erie, PA

E-mail: Alisongray@neo.rr.com E-mail: Alisongray@neo.rr.com
Resources
Chapter 12 29 29
Table of Cases Table of Cases
A A
Alleyne v. United States, 133 S.Ct. 2151 (2013) .................................................................. 9:44 Alleyne v. United States, 133 S.Ct. 2151 (2013) .................................................................. 9:44
Apprendi v. New Jersey, 530 U.S. 466 (2000) ........................................................................ 9:43 Apprendi v. New Jersey, 530 U.S. 466 (2000) ........................................................................ 9:43
A.S. v. Pennsylvania State Police, 87 A.3d 914 (Pa. Cmwlth. 2014) ......................... 11:28 A.S. v. Pennsylvania State Police, 87 A.3d 914 (Pa. Cmwlth. 2014) ......................... 11:28
Augilar v. Attorney General of U.S., 663 F.3d 692 (3rd Cir. 2011) ............................... 3:27 Augilar v. Attorney General of U.S., 663 F.3d 692 (3rd Cir. 2011) ............................... 3:27
Averilla v. Lopez, 862 F.Supp.2d 987 (N.D.Cal. 2012) ........................................................ 5:25 Averilla v. Lopez, 862 F.Supp.2d 987 (N.D.Cal. 2012) ........................................................ 5:25
B B
Bergdoll v. Commonwealth, 858 A.2d 185 (Pa. Cmwlth. 2004), Bergdoll v. Commonwealth, 858 A.2d 185 (Pa. Cmwlth. 2004),
affd, 874 A.2d 1148 (Pa. 2005) ..................................................................................................... 7:23 affd, 874 A.2d 1148 (Pa. 2005) ..................................................................................................... 7:23
Bishop v. United States, 350 U.S. 91 (1956) ........................................................................... 7:87 Bishop v. United States, 350 U.S. 91 (1956) ........................................................................... 7:87
B.K. v. Department of Public Welfare, B.K. v. Department of Public Welfare,

36 A.3d 649, 657 (Pa. Cmwlth. 2012) ...................................................................................... 7:109 36 A.3d 649, 657 (Pa. Cmwlth. 2012) ...................................................................................... 7:109
Brady v. Maryland, 373 U.S. 83 (1963) ......................................................................... 6:26, 6:27 Brady v. Maryland, 373 U.S. 83 (1963) ......................................................................... 6:26, 6:27
Brooks v. State, 748 So.2d 736 (Miss. 1999) .......................................................................... 8:31 Brooks v. State, 748 So.2d 736 (Miss. 1999) .......................................................................... 8:31
Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011) ................ 4:35 Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011) ................ 4:35
B.T. v. Family Services of Western Pennsylvania, 705 A.2d 1325, B.T. v. Family Services of Western Pennsylvania, 705 A.2d 1325,
(Pa. Super. 1998), affd, 728 A.2d 953 (Pa. 1999) ................................................................. 7:95 (Pa. Super. 1998), affd, 728 A.2d 953 (Pa. 1999) ................................................................. 7:95
C C
Carney v. Pennsylvania Railroad Co., 240 A.2d 71, 75 (Pa. 1968) ............. 7:100, 7:101 Carney v. Pennsylvania Railroad Co., 240 A.2d 71, 75 (Pa. 1968) ............. 7:100, 7:101
Center for Democracy v. Papper, 337 F.Supp.2d 606 (E.D.Pa. 2004) ............. 4:31, 9:40 Center for Democracy v. Papper, 337 F.Supp.2d 606 (E.D.Pa. 2004) ............. 4:31, 9:40
Chambers v. Mississippi, 410 U.S. 284, (1973) ..................................................................... 5:23 Chambers v. Mississippi, 410 U.S. 284, (1973) ..................................................................... 5:23
Commonwealth v. Ables, 590 A.2d 334 (Pa. Super. 1991), Commonwealth v. Ables, 590 A.2d 334 (Pa. Super. 1991),
appeal denied, 597 A.2d 1150 (Pa. 1991) .......................................................... 2:8-9, 2:12, 7:37 appeal denied, 597 A.2d 1150 (Pa. 1991) .......................................................... 2:8-9, 2:12, 7:37
R-1 R-1
Commonwealth v. Ackley, 58 A.3d 1284 (Pa. Super. 2012), appeal denied, Commonwealth v. Ackley, 58 A.3d 1284 (Pa. Super. 2012), appeal denied,
--- Pa. ---, 70 A.3d 808 (2013) ...................................................................................................... 11:23 --- Pa. ---, 70 A.3d 808 (2013) ...................................................................................................... 11:23
Commonwealth v. Adamo, 637 A.2d 302 (Pa. Super. 1994) .............................................. 4:7 Commonwealth v. Adamo, 637 A.2d 302 (Pa. Super. 1994) .............................................. 4:7
Commonwealth v. Adams, 482 A.2d 583 (Pa. Super. 1984) ........................................... 2:19 Commonwealth v. Adams, 482 A.2d 583 (Pa. Super. 1984) ........................................... 2:19
Commonwealth v. Ahmad, 961 A.2d 884 (Pa. Super. 2008) ................................. 4:9, 9:62 Commonwealth v. Ahmad, 961 A.2d 884 (Pa. Super. 2008) ................................. 4:9, 9:62
Commonwealth v. Alderman, 811 A.2d 592 (Pa.Super. 2002), Commonwealth v. Alderman, 811 A.2d 592 (Pa.Super. 2002),
appeal denied, 573 Pa. 694, 825 A.2d 1259 (2003) ................................................... 8:21, 8:25 appeal denied, 573 Pa. 694, 825 A.2d 1259 (2003) ................................................... 8:21, 8:25
Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. 2010), Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. 2010),
appeal denied, 4 A.3d 157 (Pa. 2010) .......................................................................................... 7:53 appeal denied, 4 A.3d 157 (Pa. 2010) .......................................................................................... 7:53
Commonwealth v. Alexander, 383 A.2d 887 (Pa. 1978) ................................................. 2:19 Commonwealth v. Alexander, 383 A.2d 887 (Pa. 1978) ................................................. 2:19
Commonwealth v. Alicia, 92 A.3d 753 (Pa. 2014) ............................................................... 8:37 Commonwealth v. Alicia, 92 A.3d 753 (Pa. 2014) ............................................................... 8:37
Commonwealth v. Allburn, 721 A.2d 363 (Pa. Super. 1998), Commonwealth v. Allburn, 721 A.2d 363 (Pa. Super. 1998),
appeal denied, 739 A.2d 163 (Pa. 1999) ...................................................... 2:4, 2:5, 5:21, 7:17 appeal denied, 739 A.2d 163 (Pa. 1999) ...................................................... 2:4, 2:5, 5:21, 7:17
Commonwealth v. Allen, 19 A. 957 (Pa. 1890) ..................................................................... 7:33 Commonwealth v. Allen, 19 A. 957 (Pa. 1890) ..................................................................... 7:33
Commonwealth v. Allen, 429 A.2d 1113 (Pa. Super. 1981) ............................................ 6:30 Commonwealth v. Allen, 429 A.2d 1113 (Pa. Super. 1981) ............................................ 6:30
Commonwealth v. Allshouse, 36 A.3d 163 (Pa. 2012), Commonwealth v. Allshouse, 36 A.3d 163 (Pa. 2012),
cert. denied, 133 S.Ct. 2336 (2013) ............................................................ 7:78, 7:82, 7:83, 7:85 cert. denied, 133 S.Ct. 2336 (2013) ............................................................ 7:78, 7:82, 7:83, 7:85
Commonwealth v. Alston, 864 A.2d 539 (Pa. Super. 2004) ............................................. 6:30 Commonwealth v. Alston, 864 A.2d 539 (Pa. Super. 2004) ............................................. 6:30
Commonwealth v. Anderson, 630 A.2d 47 (Pa. Super. 1993), Commonwealth v. Anderson, 630 A.2d 47 (Pa. Super. 1993),
appeal denied, 637 A.2d 277 (Pa. 1993) ............................................................................. 2:23-24 appeal denied, 637 A.2d 277 (Pa. 1993) ............................................................................. 2:23-24
Commonwealth v. Andre, 17 A.3d 951(Pa. Super. 2011) ................................................. 5:31 Commonwealth v. Andre, 17 A.3d 951(Pa. Super. 2011) ................................................. 5:31
Commonwealth v. Andrulewicz, 911 A.2d 162 (Pa. Super. 2006), appeal denied, Commonwealth v. Andrulewicz, 911 A.2d 162 (Pa. Super. 2006), appeal denied,
926 A.2d 972 (Pa.2007) .................................................................................... 2:9, 3:27, 7:10, 7:37 926 A.2d 972 (Pa.2007) .................................................................................... 2:9, 3:27, 7:10, 7:37
Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999) ......................................................... 9:16 Commonwealth v. Anders, 725 A.2d 170 (Pa. 1999) ......................................................... 9:16
Commonwealth v. Antidormi, 84 A.23 736 (Pa. Super. 2014) ........................ 9:29, 10:15 Commonwealth v. Antidormi, 84 A.23 736 (Pa. Super. 2014) ........................ 9:29, 10:15
Commonwealth v. Apollo, 603 A.2d 1023 (Pa.Super. 1992), appeal denied, Commonwealth v. Apollo, 603 A.2d 1023 (Pa.Super. 1992), appeal denied,
531 Pa. 650, 613 A.2d 556 (1992) ................................................................................................ 8:11 531 Pa. 650, 613 A.2d 556 (1992) ................................................................................................ 8:11
R-2 R-2
Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004), Commonwealth v. Aponte, 855 A.2d 800 (Pa. 2004),
cert. denied, 543 U.S. 1063 (2005) ................................................................................................ 9:43 cert. denied, 543 U.S. 1063 (2005) ................................................................................................ 9:43
Commonwealth v. Appleby, 856 A.2d 191 (Pa. Super. 2004) ......................................... 6:53 Commonwealth v. Appleby, 856 A.2d 191 (Pa. Super. 2004) ......................................... 6:53
Commonwealth v. Archer, 722 A.2d 203 (Pa. Super. 1998) ........................... 7:104, 7:105 Commonwealth v. Archer, 722 A.2d 203 (Pa. Super. 1998) ........................... 7:104, 7:105
Commonwealth v. Ardinger, 839 A.2d 1143 (Pa. Super. 2003) ......................... 7:46, 7:47 Commonwealth v. Ardinger, 839 A.2d 1143 (Pa. Super. 2003) ......................... 7:46, 7:47
Commonwealth v. Askew, 666 A.2d 1062 (Pa. Super. 1995), Commonwealth v. Askew, 666 A.2d 1062 (Pa. Super. 1995),
appeal denied, 683 A.2d 876 (Pa. 1996) ............................................... 6:28, 6:55, 6:56, 7:96 appeal denied, 683 A.2d 876 (Pa. 1996) ............................................... 6:28, 6:55, 6:56, 7:96
Commonwealth v. Atkins, 644 A.2d 751 (Pa. Super. 1994) ............................................. 6:17 Commonwealth v. Atkins, 644 A.2d 751 (Pa. Super. 1994) ............................................. 6:17
Commonwealth v. Atkinson, 987 A.2d 743 (Pa. Super. 2009) ............................ 7:27, 7:28 Commonwealth v. Atkinson, 987 A.2d 743 (Pa. Super. 2009) ............................ 7:27, 7:28
Commonwealth v. Atwood, 547 A.2d 1257 (Pa. Super. 1988), Commonwealth v. Atwood, 547 A.2d 1257 (Pa. Super. 1988),
appeal denied, 521 Pa. 616, 557 A.2d 720 (1989) ............................................................. 10:18 appeal denied, 521 Pa. 616, 557 A.2d 720 (1989) ............................................................. 10:18
Commonwealth v. Austin, 66 A.3d 798 (Pa. Super. 2013), appeal denied, Commonwealth v. Austin, 66 A.3d 798 (Pa. Super. 2013), appeal denied,
--- Pa. ---, 77 A.3d 1258 (2013) ...................................................................................................... 9:53 --- Pa. ---, 77 A.3d 1258 (2013) ...................................................................................................... 9:53
Commonwealth v. A.W.C., 951 A.2d 1174 (Pa. Super. 2008) .................. 3;19, 3:20, 3:24 Commonwealth v. A.W.C., 951 A.2d 1174 (Pa. Super. 2008) .................. 3;19, 3:20, 3:24
Commonwealth v. Baer, 227 A.2d 915 (Pa. Super. 1967) ............................................... 4:36 Commonwealth v. Baer, 227 A.2d 915 (Pa. Super. 1967) ............................................... 4:36
Commonwealth v. Baez, 720 A.2d 711 (Pa. 1998), cert. denied, Commonwealth v. Baez, 720 A.2d 711 (Pa. 1998), cert. denied,
528 U.S. 827 (1999) ............................................................................................................................ 7:48 528 U.S. 827 (1999) ............................................................................................................................ 7:48
Commonwealth v. Baez, 21 A.3d 1280 (Pa. Super. 2011) ................................................ 6:44 Commonwealth v. Baez, 21 A.3d 1280 (Pa. Super. 2011) ................................................ 6:44
Commonwealth v. Baker, 353 A.2d 454 (Pa. 1976) ............................................................ 7:88 Commonwealth v. Baker, 353 A.2d 454 (Pa. 1976) ............................................................ 7:88
Commonwealth v. Baker, 78 A.3d 1044 (Pa. 2013) ................................................. 4:25, 9:49 Commonwealth v. Baker, 78 A.3d 1044 (Pa. 2013) ................................................. 4:25, 9:49
Commonwealth v. Baird, 856 A.2d 114 (Pa. Super. 2004) .............................................. 9:23 Commonwealth v. Baird, 856 A.2d 114 (Pa. Super. 2004) .............................................. 9:23
Commonwealth v. Barger, 743 A.2d 477 (Pa. Super. 1999) .............................................. 2:8 Commonwealth v. Barger, 743 A.2d 477 (Pa. Super. 1999) .............................................. 2:8
Commonwealth v. Barger, 956 A.2d 458 (Pa. Super. 2008), Commonwealth v. Barger, 956 A.2d 458 (Pa. Super. 2008),
appeal denied, 980 A.2d 109 (Pa. 2009) .................................................................................... 5:27 appeal denied, 980 A.2d 109 (Pa. 2009) .................................................................................... 5:27
Commonwealth v. Barnett, 50 A.3d 176 (Pa. Super. 2012), appeal denied, Commonwealth v. Barnett, 50 A.3d 176 (Pa. Super. 2012), appeal denied,
--- Pa. ---, 63 A.3d 772 (2013) ................................................................................. 7:78, 7:85, 8:16 --- Pa. ---, 63 A.3d 772 (2013) ................................................................................. 7:78, 7:85, 8:16
R-3 R-3
Commonwealth v. Barnette, 760 A.2d 1166 (Pa. Super. 2000) ..................................... 4:19 Commonwealth v. Barnette, 760 A.2d 1166 (Pa. Super. 2000) ..................................... 4:19
Commonwealth v. Barnhart, 497 A.2d 616 (Pa. Super. 1985) ............................ 4:9, 4:12 Commonwealth v. Barnhart, 497 A.2d 616 (Pa. Super. 1985) ............................ 4:9, 4:12
Commonwealth v. Baronner, 471 A.2d 104 (Pa. Super. 1984 ....................................... 5:15 Commonwealth v. Baronner, 471 A.2d 104 (Pa. Super. 1984 ....................................... 5:15
Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996) ........................................................... 2:16 Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996) ........................................................... 2:16
Commonwealth v. Bastone, 467 A.2d 1339 (Pa. Super. 1983) ...................................... 9:10 Commonwealth v. Bastone, 467 A.2d 1339 (Pa. Super. 1983) ...................................... 9:10
Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992) ................................................... 7:75 Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992) ................................................... 7:75
Commonwealth v. Beale, 665 A.2d 473 (Pa. Super. 1995), Commonwealth v. Beale, 665 A.2d 473 (Pa. Super. 1995),
appeal denied, 676 A.2d 1194 (Pa. 1996) .................................................................................. 7:71 appeal denied, 676 A.2d 1194 (Pa. 1996) .................................................................................. 7:71
Commonwealth v. Beaman, 846 A.2d 764 (Pa. Super. 2004) ........................................ 6:37 Commonwealth v. Beaman, 846 A.2d 764 (Pa. Super. 2004) ........................................ 6:37
Commonwealth v. Begley, 780 A.2d 605 (Pa. 2001) ........................................................... 5:10 Commonwealth v. Begley, 780 A.2d 605 (Pa. 2001) ........................................................... 5:10
Commonwealth v. Bell, 31 A. 123 (Pa. 1895) ......................................................................... 6:39 Commonwealth v. Bell, 31 A. 123 (Pa. 1895) ......................................................................... 6:39
Commonwealth v. Bender, 811 A.2d 1016 (Pa. Super. 2002) ....................................... 10:7 Commonwealth v. Bender, 811 A.2d 1016 (Pa. Super. 2002) ....................................... 10:7
Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004) ....................... 11:24, 11:27 Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004) ....................... 11:24, 11:27
Commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1994) ............... 3:9, 3:10, 3:16, 3:27, Commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1994) ............... 3:9, 3:10, 3:16, 3:27,
................................................... 6:49, 7:38, 7:39 ................................................... 6:49, 7:38, 7:39
Commonwealth v. Berrigan, 501 A.2d 226 (Pa. 1985) ..................................................... 7:12 Commonwealth v. Berrigan, 501 A.2d 226 (Pa. 1985) ..................................................... 7:12
Commonwealth v. Berry, 513 A.2d 410 (Pa. Super. 1986) .......................... 2:4, 4:20, 7:13 Commonwealth v. Berry, 513 A.2d 410 (Pa. Super. 1986) .......................... 2:4, 4:20, 7:13
Commonwealth v. Billa, 555 A.2d 835 (Pa. 1989) .................................................... 7:41, 7:49 Commonwealth v. Billa, 555 A.2d 835 (Pa. 1989) .................................................... 7:41, 7:49
Commonwealth v. Birdsong, 24 A.3d 319 (Pa. 2011) ........................................................ 8:37 Commonwealth v. Birdsong, 24 A.3d 319 (Pa. 2011) ........................................................ 8:37
Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. 1999), appeal denied, Commonwealth v. Bishop, 742 A.2d 178 (Pa. Super. 1999), appeal denied,
563 Pa. 638, 758 A.2d 1194 (2000) ............................................................................................. 8:16 563 Pa. 638, 758 A.2d 1194 (2000) ............................................................................................. 8:16
Commonwealth v. Bishop, 936 A.2d 1136 (Pa. Super. 2007), Commonwealth v. Bishop, 936 A.2d 1136 (Pa. Super. 2007),
appeal denied, 951 A.2d 1159 (Pa. 2007) .................................................................... 7:105, 9:24 appeal denied, 951 A.2d 1159 (Pa. 2007) .................................................................... 7:105, 9:24
Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985) ............. 5:22, 5:25, 6:47, 7:18 Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985) ............. 5:22, 5:25, 6:47, 7:18
Commonwealth v. Blasioli, 685 A.2d 151 (Pa. Super. 1996), affd, Commonwealth v. Blasioli, 685 A.2d 151 (Pa. Super. 1996), affd,
713 A.2d 1117 (Pa. 1998) ............................................. 6:28, 7:8, 7:10, 8:21, 8:22, 8:24, 8:25 713 A.2d 1117 (Pa. 1998) ............................................. 6:28, 7:8, 7:10, 8:21, 8:22, 8:24, 8:25
R-4 R-4
Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004) ....................................... 6:30, 7:46 Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004) ....................................... 6:30, 7:46
Commonwealth v. Bodge, 389 A.2d 1172 (Pa. Super. 1978) .......................................... 6:37 Commonwealth v. Bodge, 389 A.2d 1172 (Pa. Super. 1978) .......................................... 6:37
Commonwealth v. Bohonyi, 900 A.2d 877 (Pa. Super. 2006), Commonwealth v. Bohonyi, 900 A.2d 877 (Pa. Super. 2006),
Commonwealth v. Bomar, 826 A.2d 831 (2003), cert. denied, Commonwealth v. Bomar, 826 A.2d 831 (2003), cert. denied,
540 U.S. 1115 (2004) ............................................................................................................................ 7:8 540 U.S. 1115 (2004) ............................................................................................................................ 7:8
Commonwealth v. Bonacurso, 455 A.2d 1175 (Pa. 1983) ............................................... 6:35 Commonwealth v. Bonacurso, 455 A.2d 1175 (Pa. 1983) ............................................... 6:35
Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980) .......................................................... 1:3 Commonwealth v. Bonadio, 415 A.2d 47 (Pa. 1980) .......................................................... 1:3
Commonwealth v. Bonomo, 151 A.2d 441 (Pa. 1959) .......................................................... 5:8 Commonwealth v. Bonomo, 151 A.2d 441 (Pa. 1959) .......................................................... 5:8
Commonwealth v. Bookard, 978 A.2d 1006 (Pa. Super. 2009), Commonwealth v. Bookard, 978 A.2d 1006 (Pa. Super. 2009),
Commonwealth v. Booth, 766 A.2d 843 (Pa. 2001) ............................................................... 3:8 Commonwealth v. Booth, 766 A.2d 843 (Pa. 2001) ............................................................... 3:8
Commonwealth v. Bourgeon, 654 A.2d 555 (Pa. Super. 1994), Commonwealth v. Bourgeon, 654 A.2d 555 (Pa. Super. 1994),
appeal denied, 668 A.2d 1121 (Pa. 1995) ....................................................................... 8:15, 8;19 appeal denied, 668 A.2d 1121 (Pa. 1995) ....................................................................... 8:15, 8;19
Commonwealth v. Boyle, 532 A.2d 306 (Pa. 1987) ............................................................ 10:9 Commonwealth v. Boyle, 532 A.2d 306 (Pa. 1987) ............................................................ 10:9
Commonwealth v. Boyles, 595 A.2d 1180, (Pa. Super. 1991) ......................................... 5:25 Commonwealth v. Boyles, 595 A.2d 1180, (Pa. Super. 1991) ......................................... 5:25
Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986) .............................................................. 7:70 Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986) .............................................................. 7:70
Commonwealth v. Brady, 508 A.2d 286 (Pa. 1986) ............................................ 10:4, 10:11 Commonwealth v. Brady, 508 A.2d 286 (Pa. 1986) ............................................ 10:4, 10:11
Commonwealth v. Bricker, 580 A2d 388 (Pa. Super. 1990) ........................................... 4:20 Commonwealth v. Bricker, 580 A2d 388 (Pa. Super. 1990) ........................................... 4:20
Commonwealth v. Bricker, 41 A.3d 872 (Pa. Super. 2012) ............................ 5:17, 10:28 Commonwealth v. Bricker, 41 A.3d 872 (Pa. Super. 2012) ............................ 5:17, 10:28
Commonwealth v. Bridge, 435 A.2d 151 (Pa. 1981) .......................................................... 5:34 Commonwealth v. Bridge, 435 A.2d 151 (Pa. 1981) .......................................................... 5:34
Commonwealth v. Brison, 618 A.2d 420 (Pa.Super. 1992) ..................... 5:12, 8:21, 8:26 Commonwealth v. Brison, 618 A.2d 420 (Pa.Super. 1992) ..................... 5:12, 8:21, 8:26
Commonwealth v. Brocco, 396 A.2d 1371 (Pa. Super. 1979) ......................................... 6:29 Commonwealth v. Brocco, 396 A.2d 1371 (Pa. Super. 1979) ......................................... 6:29
Commonwealth v. Brooks, 7 A.3d 852 (Pa. Super. 2010), Commonwealth v. Brooks, 7 A.3d 852 (Pa. Super. 2010),
appeal denied, 21 A.3d 1189 (Pa. 2011) ......................................................................... 5:43, 5:44 appeal denied, 21 A.3d 1189 (Pa. 2011) ......................................................................... 5:43, 5:44
Commonwealth v. Brown 596 A.2d 840 (Pa.Super. 1991), appeal denied, Commonwealth v. Brown 596 A.2d 840 (Pa.Super. 1991), appeal denied,
616 A.2d 982 (Pa. 1992) ................................................................................................................... 8:14 616 A.2d 982 (Pa. 1992) ................................................................................................................... 8:14
R-5 R-5
Commonwealth v. Brown, 676 A.2d 1178 (Pa. 1996) ........................................................ 6:35 Commonwealth v. Brown, 676 A.2d 1178 (Pa. 1996) ........................................................ 6:35
Commonwealth v. Brown, 711 A.2d 444 (Pa. 1998) .......................................................... 2:20 Commonwealth v. Brown, 711 A.2d 444 (Pa. 1998) .......................................................... 2:20
Commonwealth v. Brown, 721 A.2d 1105 (Pa.Super. 1998) ............................................ 4:9 Commonwealth v. Brown, 721 A.2d 1105 (Pa.Super. 1998) ............................................ 4:9
Commonwealth v. Brown, 727 A.2d 541 (Pa. 1999) ............................................... 2:13, 3:21 Commonwealth v. Brown, 727 A.2d 541 (Pa. 1999) ............................................... 2:13, 3:21
Commonwealth v. Brown, 26 A.3d 485, (Pa. Super. 2011) .............................................. 2:25 Commonwealth v. Brown, 26 A.3d 485, (Pa. Super. 2011) .............................................. 2:25
Commonwealth v. Brown, 52 A.3d 320 (Pa. Super. 2012), Commonwealth v. Brown, 52 A.3d 320 (Pa. Super. 2012),
appeal denied, 62 A.3d 377 (Pa. 2013) ........................................................................... 7:10, 7:49 appeal denied, 62 A.3d 377 (Pa. 2013) ........................................................................... 7:10, 7:49
Commonwealth v. Brown, 71 A.3d 1009 (Pa. Super. 2013), appeal denied, Commonwealth v. Brown, 71 A.3d 1009 (Pa. Super. 2013), appeal denied,
77 A.3d 635 (Pa. 2013) ................................................................................................................ 10:29 77 A.3d 635 (Pa. 2013) ................................................................................................................ 10:29
Commonwealth v. Brooks, 875 A.2d 1141 Pa. Super. 2005) .......................................... 8:29 Commonwealth v. Brooks, 875 A.2d 1141 Pa. Super. 2005) .......................................... 8:29
Commonwealth v. Bruce, 916 A.2d 657 (Pa. Super. 2007), appeal denied, Commonwealth v. Bruce, 916 A.2d 657 (Pa. Super. 2007), appeal denied,
932 A.2d 74 (Pa. 2007) ..................................................................................................... 2:18, 10:23 932 A.2d 74 (Pa. 2007) ..................................................................................................... 2:18, 10:23
Commonwealth v. Bryson, 860 A.2d 1101 (Pa. Super. 2004), appeal denied, Commonwealth v. Bryson, 860 A.2d 1101 (Pa. Super. 2004), appeal denied,
875 A.2d 1072 (Pa. 2005) ...................................................... 7:31, 7:32, 7:33, 7:35, 7:36, 7:37 875 A.2d 1072 (Pa. 2005) ...................................................... 7:31, 7:32, 7:33, 7:35, 7:36, 7:37
Commonwealth v. Budd, 821 A.2d 629 (Pa. Super. 2003 ................................................. 3:28 Commonwealth v. Budd, 821 A.2d 629 (Pa. Super. 2003 ................................................. 3:28
Commonwealth v. Buechele, 444 A.2d 1246 (Pa. Super. 1982) .................................... 6:44 Commonwealth v. Buechele, 444 A.2d 1246 (Pa. Super. 1982) .................................... 6:44
Commonwealth v. Buffington, Commonwealth v. Buffington,

828 A.2d 1024 (Pa. 2004) .............................................. 1:5; 2:13, 3:21, 3:23, 3:27, 5:14, 7:39 828 A.2d 1024 (Pa. 2004) .............................................. 1:5; 2:13, 3:21, 3:23, 3:27, 5:14, 7:39
Commonwealth v. Bundy, 96 A.3d 390 (Pa. Super. 2014) ........................................... 11:42 Commonwealth v. Bundy, 96 A.3d 390 (Pa. Super. 2014) ........................................... 11:42
Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001) ........... 6:26, 6:27, 6:30, 6:33, 6:35 Commonwealth v. Burke, 781 A.2d 1136 (Pa. 2001) ........... 6:26, 6:27, 6:30, 6:33, 6:35
Commonwealth v. Burns, 988 A.2d 684 (Pa. Super. 2009), Commonwealth v. Burns, 988 A.2d 684 (Pa. Super. 2009),
appeal denied, 8 A.3d 341 (Pa. 2010) ..................................... 2:4, 2:5, 5:22, 6:45, 6:48, 7:18 appeal denied, 8 A.3d 341 (Pa. 2010) ..................................... 2:4, 2:5, 5:22, 6:45, 6:48, 7:18
Commonwealth v. Busanet, 817 A.2d 1060 (2002), cert. denied, Commonwealth v. Busanet, 817 A.2d 1060 (2002), cert. denied,
540 U.S. 869 (2003) ........................................................................................................................... 7:43 540 U.S. 869 (2003) ........................................................................................................................... 7:43
Commonwealth v. Buser, 419 A.2d 1233 (Pa. Super. 1980 .............................................. 3:40 Commonwealth v. Buser, 419 A.2d 1233 (Pa. Super. 1980 .............................................. 3:40
Commonwealth v. Burrows, 779 A.2d 509 (Pa.Super. 2001) ...................................... 7:107 Commonwealth v. Burrows, 779 A.2d 509 (Pa.Super. 2001) ...................................... 7:107
Commonwealth v. Butler, 621 A.2d 630 (Pa.Super. 1993) .............................................. 7:16 Commonwealth v. Butler, 621 A.2d 630 (Pa.Super. 1993) .............................................. 7:16
R-6 R-6
Commonwealth v. Butler, 812 A.2d 631 (Pa. 2002) ....................................................... 10:18 Commonwealth v. Butler, 812 A.2d 631 (Pa. 2002) ....................................................... 10:18
Commonwealth v. Byuss, 539 A.2d 852 (Pa. Super. 1988) .............................................. 6:29 Commonwealth v. Byuss, 539 A.2d 852 (Pa. Super. 1988) .............................................. 6:29
Commonwealth v. Cameron, 780 A.2d 688 (Pa. Super. 2001) ....................................... 6:38 Commonwealth v. Cameron, 780 A.2d 688 (Pa. Super. 2001) ....................................... 6:38
Commonwealth v. Campbell, 368 A.2d 1299 (Pa.Super. 1976) ............. 7:64, 7:67, 8:36 Commonwealth v. Campbell, 368 A.2d 1299 (Pa.Super. 1976) ............. 7:64, 7:67, 8:36
Commonwealth v. Campbell, 421 A.2d 681 (Pa. Super. 1980) ..................................... 10:6 Commonwealth v. Campbell, 421 A.2d 681 (Pa. Super. 1980) ..................................... 10:6
Commonwealth v. Capo, 727 A.2d 1126 (Pa. Super. 1999), appeal denied, Commonwealth v. Capo, 727 A.2d 1126 (Pa. Super. 1999), appeal denied,
749 A.2d 465 (Pa. 2000) ........................................................................................................ 2:16, 3:37 749 A.2d 465 (Pa. 2000) ........................................................................................................ 2:16, 3:37
Commonwealth v. Cardwell, 515 A.2d 311(Pa. Super. 1986) ........................... 4:11, 4:12 Commonwealth v. Cardwell, 515 A.2d 311(Pa. Super. 1986) ........................... 4:11, 4:12
Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002) .................................... 7:100 Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002) .................................... 7:100
Commonwealth v. Carter, 418 A.2d 537 (Pa. Super. 1980 ............................................... 3.24 Commonwealth v. Carter, 418 A.2d 537 (Pa. Super. 1980 ............................................... 3.24
Commonwealth v. Carter, 932 A.2d 1261 (Pa. 2007) ........................................................ 7:65 Commonwealth v. Carter, 932 A.2d 1261 (Pa. 2007) ........................................................ 7:65
Commonwealth v. Carver, 923 A.2d 495 (Pa. Super. 2007) .......................................... 9:62 Commonwealth v. Carver, 923 A.2d 495 (Pa. Super. 2007) .......................................... 9:62
Commonwealth v. Cascardo, 981 A.2d 245 (Pa.Super. 2009), Commonwealth v. Cascardo, 981 A.2d 245 (Pa.Super. 2009),
appeal denied, 12 A.3d 750 (Pa. 2010) ...................................................................................... 7:76 appeal denied, 12 A.3d 750 (Pa. 2010) ...................................................................................... 7:76
Commonwealth v. Cassidy, 668 A.2d 1143 (Pa. Super. 1995), Commonwealth v. Cassidy, 668 A.2d 1143 (Pa. Super. 1995),
alloc. denied, 681 A.2d 176 (Pa. 1996) ....................................................................................... 2:18 alloc. denied, 681 A.2d 176 (Pa. 1996) ....................................................................................... 2:18
Commonwealth v. Castelhun, 889 A.2d 1228 (Pa. Super. 2005) .................................. 7:11 Commonwealth v. Castelhun, 889 A.2d 1228 (Pa. Super. 2005) .................................. 7:11
Commonwealth v. Caterino, 678 A.2d 389 (Pa. Super. 1996), Commonwealth v. Caterino, 678 A.2d 389 (Pa. Super. 1996),
Commonwealth v. Cauto, 535 A.2d 602 (Pa. Super. 1987) ............................................. 4:43 Commonwealth v. Cauto, 535 A.2d 602 (Pa. Super. 1987) ............................................. 4:43
Commonwealth v. Cesar, 911 A.2d 978 (Pa. Super. 2006), appeal denied, Commonwealth v. Cesar, 911 A.2d 978 (Pa. Super. 2006), appeal denied,
928 A.2d 1289 (Pa. 2007) .......................................................................................... 3:37, 4:17, 7:80 928 A.2d 1289 (Pa. 2007) .......................................................................................... 3:37, 4:17, 7:80
Commonwealth v. Chamberlain, 20 A.3d 381 (Pa. 2011) ............................................... 6:27 Commonwealth v. Chamberlain, 20 A.3d 381 (Pa. 2011) ............................................... 6:27
Commonwealth v. Chambers, 685 A.2d 96, 107 (Pa. 1996), Commonwealth v. Chambers, 685 A.2d 96, 107 (Pa. 1996),
cert. denied, 522 U.S. 827 (1997) ..................................................................................................... 7:8 cert. denied, 522 U.S. 827 (1997) ..................................................................................................... 7:8
Commonwealth v. Chambers, 807 A.2d 872 (Pa. 2002) ................................................... 6:27 Commonwealth v. Chambers, 807 A.2d 872 (Pa. 2002) ................................................... 6:27
R-7 R-7
Commonwealth v. Chandler, 721 A.2d 1040 (Pa. 1998) .................................................. 7:61 Commonwealth v. Chandler, 721 A.2d 1040 (Pa. 1998) .................................................. 7:61
Commonwealth v. Charlton, 902 A.2d 554 (Pa. Super. 2006), appeal denied, Commonwealth v. Charlton, 902 A.2d 554 (Pa. Super. 2006), appeal denied,
911 A.2d 933 (Pa. 2006) ..................................................................... 3:40, 4:17, 7:10, 7:24, 7:27 911 A.2d 933 (Pa. 2006) ..................................................................... 3:40, 4:17, 7:10, 7:24, 7:27
Commonwealth v. Cheeseboro, 91 A.3d 714 (Pa. Super. 2014) ................................ 11:25 Commonwealth v. Cheeseboro, 91 A.3d 714 (Pa. Super. 2014) ................................ 11:25
Commonwealth v. Chiappini, 782 A.2d 490 (Pa. 2001) ................................................. 7:107 Commonwealth v. Chiappini, 782 A.2d 490 (Pa. 2001) ................................................. 7:107
Commonwealth v. Chmiel, 738 A.2d 406 (Pa. 1999), cert. denied, Commonwealth v. Chmiel, 738 A.2d 406 (Pa. 1999), cert. denied,
528 U.S. 1131 (2000) ......................................................................................................................... 7:68 528 U.S. 1131 (2000) ......................................................................................................................... 7:68
Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011) .......................................................... 8:33 Commonwealth v. Chmiel, 30 A.3d 1111 (Pa. 2011) .......................................................... 8:33
Commonwealth v. C.L., 963 A.2d 489 (Pa. Super. 2008) ................................................... 2:22 Commonwealth v. C.L., 963 A.2d 489 (Pa. Super. 2008) ................................................... 2:22
Commonwealth v. Clark, 512 A.2d 1282 (Pa. Super. 1986), Commonwealth v. Clark, 512 A.2d 1282 (Pa. Super. 1986),
appeal denied, 523 A.2d 345 (Pa. 1987) ................................................................................... 7:60 appeal denied, 523 A.2d 345 (Pa. 1987) ................................................................................... 7:60
Commonwealth v. Clark, 683 A.2d 901 (Pa. Super. 1996) .................................................. 5:5 Commonwealth v. Clark, 683 A.2d 901 (Pa. Super. 1996) .................................................. 5:5
Commonwealth v. Claypool, 495 A.2d 176 (Pa. 1985) ........................................... 7:44, 7:51 Commonwealth v. Claypool, 495 A.2d 176 (Pa. 1985) ........................................... 7:44, 7:51
Commonwealth v. Cody, 584 A.2d 992 (Pa. Super. 1991) ................................................ 6:55 Commonwealth v. Cody, 584 A.2d 992 (Pa. Super. 1991) ................................................ 6:55
Commonwealth v. Cohen, 538 A.2d 582 (Pa. Super. 1988), Commonwealth v. Cohen, 538 A.2d 582 (Pa. Super. 1988),
Commonwealth v. Collins, 702 A.2d 540 (Pa. 1997), Commonwealth v. Collins, 702 A.2d 540 (Pa. 1997),
cert denied, 525 U.S. 835 (1998) .................................................................................. 5:5, 5:9, 5:10 cert denied, 525 U.S. 835 (1998) .................................................................................. 5:5, 5:9, 5:10
Commonwealth v. Collins, 703 A.2d 418 (Pa. 1997) .......................................................... 6:39 Commonwealth v. Collins, 703 A.2d 418 (Pa. 1997) .......................................................... 6:39
Commonwealth v. Collins, 70 A.3d 1245 (Pa. Super. 2013) ............................................ 7:46 Commonwealth v. Collins, 70 A.3d 1245 (Pa. Super. 2013) ............................................ 7:46
Commonwealth v. Colson, 490 A.2d 811 (Pa. 1985) .......................................................... 6:30 Commonwealth v. Colson, 490 A.2d 811 (Pa. 1985) .......................................................... 6:30
Commonwealth v. Conway, 534 A.2d 541 (Pa. Super. 1987), appeal denied, Commonwealth v. Conway, 534 A.2d 541 (Pa. Super. 1987), appeal denied,
549 A.2d 914 (1988) ....................................................................................................................... 7:102 549 A.2d 914 (1988) ....................................................................................................................... 7:102
Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011), appeal denied, Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011), appeal denied,
29 A.3d 795 (Pa. 2011) ..................................................................................................................... 8:29 29 A.3d 795 (Pa. 2011) ..................................................................................................................... 8:29
Commonwealth v. Cook, 941 A.2d 7 (Pa. Super. 2007) ................................................. 10:28 Commonwealth v. Cook, 941 A.2d 7 (Pa. Super. 2007) ................................................. 10:28
Commonwealth v. Corban Corp., 909 A.2d 406 (Pa. Super. 2006), Commonwealth v. Corban Corp., 909 A.2d 406 (Pa. Super. 2006),
affd 957 A.2d 274 (Pa. 2008) .............................................................................................. 5:40, 6:43 affd 957 A.2d 274 (Pa. 2008) .............................................................................................. 5:40, 6:43
R-8 R-8
Commonwealth v. Cordoba, 902 A.2d 1280 (Pa. Super. 2006) ..................................... 5:16 Commonwealth v. Cordoba, 902 A.2d 1280 (Pa. Super. 2006) ..................................... 5:16
Commonwealth v. Corley, 638 A.2d 985 (Pa. Super. 1994), appeal denied, Commonwealth v. Corley, 638 A.2d 985 (Pa. Super. 1994), appeal denied,
647 A.2d 896 (1994) .......................................................................................................................... 7:44 647 A.2d 896 (1994) .......................................................................................................................... 7:44
Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871 (2003) ..................................... 10:7 Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871 (2003) ..................................... 10:7
Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011) ................................. 10:28 Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011) ................................. 10:28
Commonwealth v. Counterman, 719 A.282 (Pa. 1998), cert. denied, Commonwealth v. Counterman, 719 A.282 (Pa. 1998), cert. denied,
528 U.S. 836 (1999) ........................................................................................................... 8:4, 8:9, 8:18 528 U.S. 836 (1999) ........................................................................................................... 8:4, 8:9, 8:18
Commonwealth v. Craft, 450 A.2d 1021 (Pa. Super. 1982) ........................................... 9:60 Commonwealth v. Craft, 450 A.2d 1021 (Pa. Super. 1982) ........................................... 9:60
Commonwealth v. Crews, 640 A.2d 395 (Pa. 1994) .................................... 8:21, 8:24, 8:25 Commonwealth v. Crews, 640 A.2d 395 (Pa. 1994) .................................... 8:21, 8:24, 8:25
Commonwealth v. Crosby, 791 A.2d 366 (Pa. Super. 2002) ..................................3:37, 7:59 Commonwealth v. Crosby, 791 A.2d 366 (Pa. Super. 2002) ..................................3:37, 7:59
Commonwealth v. Crossley, 653 A.2d 1288 (Pa. Super. 1995) ........................... 6:17, 6:33 Commonwealth v. Crossley, 653 A.2d 1288 (Pa. Super. 1995) ........................... 6:17, 6:33
Commonwealth v. Crossley, 711 A.2d 1025 (Pa. Super. 1998) ...................................... 7:85 Commonwealth v. Crossley, 711 A.2d 1025 (Pa. Super. 1998) ...................................... 7:85
Commonwealth v. Cunningham, 805 A.2d 566 (Pa. Super. 2002), Commonwealth v. Cunningham, 805 A.2d 566 (Pa. Super. 2002),
appeal denied, 820 A.2d 703 (Pa. 2002) .............................................. 7:57, 7:97, 7:98, 7:100 appeal denied, 820 A.2d 703 (Pa. 2002) .............................................. 7:57, 7:97, 7:98, 7:100
Commonwealth v. DAmato, 856 A.2d 806 (Pa. 2004) ...................................................... 9:59 Commonwealth v. DAmato, 856 A.2d 806 (Pa. 2004) ...................................................... 9:59
Commonwealth v. Davis, 526 A.2d 1205 (1987), appeal denied, Commonwealth v. Davis, 526 A.2d 1205 (1987), appeal denied,
541 A.2d 1135 (Pa. 1988) ................................................................................................................ 7:78 541 A.2d 1135 (Pa. 1988) ................................................................................................................ 7:78
Commonwealth v. Davis, 650 A.2d 4520 (Pa. Super. 1994) ............................................ 6:56 Commonwealth v. Davis, 650 A.2d 4520 (Pa. Super. 1994) ............................................ 6:56
Commonwealth v. Davis, 674 A.2d 214 (Pa. 1996) ................................................. 6:55, 7:95 Commonwealth v. Davis, 674 A.2d 214 (Pa. 1996) ................................................. 6:55, 7:95
Commonwealth v. Davis, 704 A.2d 650 (Pa. Super. 1997) .............................................. 6:28 Commonwealth v. Davis, 704 A.2d 650 (Pa. Super. 1997) .............................................. 6:28
Commonwealth v. Davis, 939 A.2d 905 (Pa. Super. 2007) .................................. 5:48, 7:15 Commonwealth v. Davis, 939 A.2d 905 (Pa. Super. 2007) .................................. 5:48, 7:15
Commonwealth v. Days, 784 A.2d 817 (Pa. Super. 2001) .................................... 5:12, 7:42 Commonwealth v. Days, 784 A.2d 817 (Pa. Super. 2001) .................................... 5:12, 7:42
Commonwealth v. Deaner, 779 A.2d 578 (Pa. Super. 2001) ...................................... 11:43 Commonwealth v. Deaner, 779 A.2d 578 (Pa. Super. 2001) ...................................... 11:43
Commonwealth v. Dear, 492 A.2d 714 (Pa. Super. 1985) ................................................ 6:46 Commonwealth v. Dear, 492 A.2d 714 (Pa. Super. 1985) ................................................ 6:46
Commonwealth v. Decker, 698 A.2d 99 (Pa. Super. 1997) ............................................. 4:19 Commonwealth v. Decker, 698 A.2d 99 (Pa. Super. 1997) ............................................. 4:19
R-9 R-9
Commonwealth v. DeHart, 516 A.2d 656 (Pa. 1986), Commonwealth v. DeHart, 516 A.2d 656 (Pa. 1986),
cert. denied, 483 U.S. 1010 (1987) ................................................................................................... 7:7 cert. denied, 483 U.S. 1010 (1987) ................................................................................................... 7:7
Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003) ................... 5:46, 5:47, 7:14, 7:15 Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003) ................... 5:46, 5:47, 7:14, 7:15
Commonwealth v. Delbridge, 859 A.2d 1254 (Pa. 2004) ................................................ 7:91 Commonwealth v. Delbridge, 859 A.2d 1254 (Pa. 2004) ................................................ 7:91
Commonwealth v. DeMarco, 809 A.2d 256 (Pa. 2002) .............................. 5:18, 5:19, 5:20 Commonwealth v. DeMarco, 809 A.2d 256 (Pa. 2002) .............................. 5:18, 5:19, 5:20
Commonwealth v. Dengler, 890 A.2d 372 (Pa. 2005) ....................................................... 8:11 Commonwealth v. Dengler, 890 A.2d 372 (Pa. 2005) ....................................................... 8:11
Commonwealth v. Dennis, 784 A.2d 179 (Pa. Super. 2001), appeal denied, Commonwealth v. Dennis, 784 A.2d 179 (Pa. Super. 2001), appeal denied,
798 A.2d 1287 (Pa. 2002) ....................................................................................................... 1:5, 3:14 798 A.2d 1287 (Pa. 2002) ....................................................................................................... 1:5, 3:14
Commonwealth v. Dennis, 859 A.2d 1270 (Pa. 2004) ........................................... 10:8, 10:9 Commonwealth v. Dennis, 859 A.2d 1270 (Pa. 2004) ........................................... 10:8, 10:9
Commonwealth v. DeWalt, 752 A.2d 915 (Pa. Super. 2000) .......................................... 3:38 Commonwealth v. DeWalt, 752 A.2d 915 (Pa. Super. 2000) .......................................... 3:38
Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013) .................................................... 10:22 Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013) .................................................... 10:22
Commonwealth v. Diaz, 867 A.2d 1285 (Pa. Super. 2005) .............................................. 5:33 Commonwealth v. Diaz, 867 A.2d 1285 (Pa. Super. 2005) .............................................. 5:33
Commonwealth v. Diaz, 51 A.3d 884 (Pa. Super. 2012), Commonwealth v. Diaz, 51 A.3d 884 (Pa. Super. 2012),
appeal denied, 76 A.3d 538 (Pa. 2013) ....................................................................................... 9:16 appeal denied, 76 A.3d 538 (Pa. 2013) ....................................................................................... 9:16
Commonwealth v. Dillon, 863 A.2d 597 (Pa. Super. 2004), affd, Commonwealth v. Dillon, 863 A.2d 597 (Pa. Super. 2004), affd,
925 A.2d 131 (Pa. 2007) ............................................... 2:8, 7:31, 7:34, 7:49, 7:104, 8:4, 10:6 925 A.2d 131 (Pa. 2007) ............................................... 2:8, 7:31, 7:34, 7:49, 7:104, 8:4, 10:6
Commonwealth v. Diodoro, 970 A.2d 1100 (Pa. 2009) .................................................... 4:25 Commonwealth v. Diodoro, 970 A.2d 1100 (Pa. 2009) .................................................... 4:25
Commonwealth v. DiStefano, 782 A.2d 574 (Pa. Super. 2001), Commonwealth v. DiStefano, 782 A.2d 574 (Pa. Super. 2001),
appeal denied, 569 Pa. 716, 806 A.2d 858 (2002) ............................................................. 10:23 appeal denied, 569 Pa. 716, 806 A.2d 858 (2002) ............................................................. 10:23
Commonwealth v. Dixon, 907 A.2d 468 (Pa. 2006) ..................................................... 6:5, 6:6 Commonwealth v. Dixon, 907 A.2d 468 (Pa. 2006) ..................................................... 6:5, 6:6
Commonwealth v. D.J.A., 800 A.2d 965 (Pa. Super. 2002), Commonwealth v. D.J.A., 800 A.2d 965 (Pa. Super. 2002),
appeal denied, 857 A.2d 677 (Pa. 2004) ............................................................ 7:62, 7:63, 7:91 appeal denied, 857 A.2d 677 (Pa. 2004) ............................................................ 7:62, 7:63, 7:91
Commonwealth v. Dobbs, 682 A.2d 388 (Pa. Super. 1996) .............................................. 3:26 Commonwealth v. Dobbs, 682 A.2d 388 (Pa. Super. 1996) .............................................. 3:26
Commonwealth v. Donahue, 549 A.2d 121 (Pa. 1988) ..................................................... 7:46 Commonwealth v. Donahue, 549 A.2d 121 (Pa. 1988) ..................................................... 7:46
Commonwealth v. Dorm, 971 A.2d 1284 (Pa. Super. 2009) .................................. 2:9, 2:19 Commonwealth v. Dorm, 971 A.2d 1284 (Pa. Super. 2009) .................................. 2:9, 2:19
Commonwealth v. Douglas, 835 A.2d 742 (Pa. Super. 2003) ..................................... 10:16 Commonwealth v. Douglas, 835 A.2d 742 (Pa. Super. 2003) ..................................... 10:16
Commonwealth v. Dozier, 439 A.2d 1185 (Pa. Super. 1982) ......................................... 7:37 Commonwealth v. Dozier, 439 A.2d 1185 (Pa. Super. 1982) ......................................... 7:37
R-10 R-10
Commonwealth v. Drumheller, 808 A.2d 893 (Pa. 2002), Commonwealth v. Drumheller, 808 A.2d 893 (Pa. 2002),
cert. denied, 539 U.S. 919 (2003) ....................................................................................... 7:42, 7:50 cert. denied, 539 U.S. 919 (2003) ....................................................................................... 7:42, 7:50
Commonwealth v. Dubin, 581 A.2d 944 (Pa. Super. (990), appeal denied, Commonwealth v. Dubin, 581 A.2d 944 (Pa. Super. (990), appeal denied,
588 A.2d 912 (Pa. 1991) ................................................................................................................ 7:107 588 A.2d 912 (Pa. 1991) ................................................................................................................ 7:107
Commonwealth v. Duffy, 832 A.2d 1132 (Pa. Super. 2003), appeal denied, Commonwealth v. Duffy, 832 A.2d 1132 (Pa. Super. 2003), appeal denied,
845 A.2d 816 (Pa. 2004) ............................................................................................................. 3:18-19 845 A.2d 816 (Pa. 2004) ............................................................................................................. 3:18-19
Commonwealth v. D.S., 903 A.2d 582 (Pa. Super. 2006) ................................................... 2:25 Commonwealth v. D.S., 903 A.2d 582 (Pa. Super. 2006) ................................................... 2:25
Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992) ......................................................... 6:39 Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992) ......................................................... 6:39
Commonwealth v. duPont, 681 A.2d 1328 (Pa. 1996) .................................................... 7:86 Commonwealth v. duPont, 681 A.2d 1328 (Pa. 1996) .................................................... 7:86
Commonwealth v. duPont, 730 A.2d 970 (Pa. Super. 1999), Commonwealth v. duPont, 730 A.2d 970 (Pa. Super. 1999),
appeal denied, 749 A.2d 466 (Pa. 2000), cert denied, 530 U.S. 1231 (2000) ............. 5:31 appeal denied, 749 A.2d 466 (Pa. 2000), cert denied, 530 U.S. 1231 (2000) ............. 5:31
Commonwealth v. duPont, 860 A.2d 525 (Pa. Super. 2004), appeal denied, Commonwealth v. duPont, 860 A.2d 525 (Pa. Super. 2004), appeal denied,
889 A.2d 87 (Pa. 2005), cert. denied, 547 U.S. 1129 (2006) ........................................ 10:31 889 A.2d 87 (Pa. 2005), cert. denied, 547 U.S. 1129 (2006) ........................................ 10:31
Commonwealth v. Dutrieville, 932 A.2d 240 (Pa. Super. 2007) ................................... 6:37 Commonwealth v. Dutrieville, 932 A.2d 240 (Pa. Super. 2007) ................................... 6:37
Commonwealth v. Dye, 765 A.2d 1123 (Pa. Super. 2000) .......................................... 7:7, 7:8 Commonwealth v. Dye, 765 A.2d 1123 (Pa. Super. 2000) .......................................... 7:7, 7:8
Commonwealth v. Eck, Commonwealth v. Eck,

605 A.2d 1248 (Pa. Super. 1992) .................................................... 6:28, 6:47, 6:48, 6:50, 6:51 605 A.2d 1248 (Pa. Super. 1992) .................................................... 6:28, 6:47, 6:48, 6:50, 6:51
Commonwealth v. Eckrote, Commonwealth v. Eckrote,

12 A.3d 383 (Pa. Super 2010) ..................................................................... 2:12, 2:13, 2:14, 5:14 12 A.3d 383 (Pa. Super 2010) ..................................................................... 2:12, 2:13, 2:14, 5:14
Commonwealth v. Edwards, 903 A.2d 1139 (Pa. 2006), Commonwealth v. Edwards, 903 A.2d 1139 (Pa. 2006),
Commonwealth v. Einhorn, 911 A.2d 960 (Pa.Super. 2006), appeal denied, Commonwealth v. Einhorn, 911 A.2d 960 (Pa.Super. 2006), appeal denied,
920 A.2d 831 (Pa. 2007) ....................................................................................................... 5:43, 8:10 920 A.2d 831 (Pa. 2007) ....................................................................................................... 5:43, 8:10
Commonwealth v. Elia, 83 A.3d 254 (Pa. Super. 2013) .............................................. 10:15 Commonwealth v. Elia, 83 A.3d 254 (Pa. Super. 2013) .............................................. 10:15
Commonwealth v. Elliott, 700 A.2d 1243 (Pa. 1997), cert. denied, Commonwealth v. Elliott, 700 A.2d 1243 (Pa. 1997), cert. denied,
524 U.S. 955 (1998) .................................................................................................... 6:28, 6:30, 7:44 524 U.S. 955 (1998) .................................................................................................... 6:28, 6:30, 7:44
Commonwealth v. Elliott, 80 A.3d 415 (Pa. Super. 2013) ................................................ 8:15 Commonwealth v. Elliott, 80 A.3d 415 (Pa. Super. 2013) ................................................ 8:15
Commonwealth v. Ellis, 608 A.2d 1090 (Pa. Super. 1992) ............................................... 6:51 Commonwealth v. Ellis, 608 A.2d 1090 (Pa. Super. 1992) ............................................... 6:51
R-11 R-11
Commonwealth v. Erney, 698 A.2d 56 (Pa. 1997) ............................. 1:6, 3:12, 3:15, 5:16 Commonwealth v. Erney, 698 A.2d 56 (Pa. 1997) ............................. 1:6, 3:12, 3:15, 5:16
Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006), appeal denied, Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 2006), appeal denied,
909 A.2d 303 (Pa. 2006) .................................................................................................................... 3:36 909 A.2d 303 (Pa. 2006) .................................................................................................................... 3:36
Commonwealth v. Farmer, 758 A.2d 173 (Pa. Super. 2000), appeal denied, Commonwealth v. Farmer, 758 A.2d 173 (Pa. Super. 2000), appeal denied,
771 A.2d 1279 (Pa. 2001) .....................................................................................................3:10, 5:36 771 A.2d 1279 (Pa. 2001) .....................................................................................................3:10, 5:36
Commonwealth v. Farrior, 458 A.2d 1353 (Pa. Super. 1983) ....................................... 7:75 Commonwealth v. Farrior, 458 A.2d 1353 (Pa. Super. 1983) ....................................... 7:75
Commonwealth v. Faulkner, 595 A.2d 28 (Pa. 1991), Commonwealth v. Faulkner, 595 A.2d 28 (Pa. 1991),
cert denied, 503 U.S. 989 (1992) ........................................................................... 5:32, 5:33, 6:32 cert denied, 503 U.S. 989 (1992) ........................................................................... 5:32, 5:33, 6:32
Commonwealth v. Fears, 836 A.2d 52 (Pa. 2003), cert. denied, Commonwealth v. Fears, 836 A.2d 52 (Pa. 2003), cert. denied,
545 U.S. 1141 (2005) ......................................................................................................................... 2:13 545 U.S. 1141 (2005) ......................................................................................................................... 2:13
Commonwealth v. Fears, 86 A.3d 795 (Pa. 2014) ........................................................... 10:32 Commonwealth v. Fears, 86 A.3d 795 (Pa. 2014) ........................................................... 10:32
Commonwealth v. Ferber, 458 U.S. 747 (1982) .................................................................. 4:25 Commonwealth v. Ferber, 458 U.S. 747 (1982) .................................................................. 4:25
Commonwealth v. Fernandez, 482 A.2d 567 (Pa. Super. 1984) ...................................... 5:6 Commonwealth v. Fernandez, 482 A.2d 567 (Pa. Super. 1984) ...................................... 5:6
Commonwealth v. Fernsler, 715 A.2d 435 (Pa. Super. 1998) ...... 5:22, 6:45, 6:48, 7:18 Commonwealth v. Fernsler, 715 A.2d 435 (Pa. Super. 1998) ...... 5:22, 6:45, 6:48, 7:18
Commonwealth v. Fetter, 770 A.2d 762 (Pa. Super. 2001), Commonwealth v. Fetter, 770 A.2d 762 (Pa. Super. 2001),
affd, 810 A.2d 637 (Pa. 2002) ............................................................................................. 5:38, 7:93 affd, 810 A.2d 637 (Pa. 2002) ............................................................................................. 5:38, 7:93
Commonwealth v. Fewell, 654 A.2d 1109 (Pa. Super. 1995) ......................................... 4:10 Commonwealth v. Fewell, 654 A.2d 1109 (Pa. Super. 1995) ......................................... 4:10
Commonwealth v. Fiebiger, 810 A.2d 1233 (Pa. 2002) ......................................... 2:22, 3:16 Commonwealth v. Fiebiger, 810 A.2d 1233 (Pa. 2002) ......................................... 2:22, 3:16
Commonwealth v. Figueroa, 648 A.2d 555 (Pa. Super. 1994) .......................................... 4:6 Commonwealth v. Figueroa, 648 A.2d 555 (Pa. Super. 1994) .......................................... 4:6
Commonwealth v. Filer, 846 A.2d 139 (Pa. Super. 2004), appeal denied, Commonwealth v. Filer, 846 A.2d 139 (Pa. Super. 2004), appeal denied,
863 A.2d 1143 (Pa. 2004) .................................................................................................................. 3:31 863 A.2d 1143 (Pa. 2004) .................................................................................................................. 3:31
Commonwealth v. Fink, Commonwealth v. Fink,
791 A.2d 1235 (Pa. Super. 2002) .................................................... 5:21, 6:46, 6:47, 6:50, 7:17 791 A.2d 1235 (Pa. Super. 2002) .................................................... 5:21, 6:46, 6:47, 6:50, 7:17
Commonwealth v. Finley, 860 A.2d 132 (Pa. Super. 2004) ............................................. 6:42 Commonwealth v. Finley, 860 A.2d 132 (Pa. Super. 2004) ............................................. 6:42
Commonwealth v. Fischer, 721 A.2d 1111 (Pa. Super. 1998), Commonwealth v. Fischer, 721 A.2d 1111 (Pa. Super. 1998),
appeal dismissed as improvidently granted, 745 A.2d 1214 (Pa. 2000) ............3:10, 5:36 appeal dismissed as improvidently granted, 745 A.2d 1214 (Pa. 2000) ............3:10, 5:36
Commonwealth v. Fleming, 801 A.2d 1234 (Pa. Super. 2002), appeal denied, Commonwealth v. Fleming, 801 A.2d 1234 (Pa. Super. 2002), appeal denied,
588 Pa. 776 (2006) .......................................................................................................................... 11:23 588 Pa. 776 (2006) .......................................................................................................................... 11:23
R-12 R-12
Commonwealth v. Flood, 627 A.2d 1193 (Pa. Super. 1993), Commonwealth v. Flood, 627 A.2d 1193 (Pa. Super. 1993),
Commonwealth v. Flowers, 950 A.2d 330 (Pa. Super. 2008) ............................................ 9:9 Commonwealth v. Flowers, 950 A.2d 330 (Pa. Super. 2008) ............................................ 9:9
Commonwealth v. Ford-Bey, 472 A.2d 1062 (Pa. 1983) ..................................................... 5:4 Commonwealth v. Ford-Bey, 472 A.2d 1062 (Pa. 1983) ..................................................... 5:4
Commonwealth v. Foster, 764 A.2d 1076 (Pa. Super. 2000) ............................... 4:10, 4:13 Commonwealth v. Foster, 764 A.2d 1076 (Pa. Super. 2000) ............................... 4:10, 4:13
Commonwealth v. Fouse, 612 A.2d 1067 (Pa. Super. 1992), appeal denied, Commonwealth v. Fouse, 612 A.2d 1067 (Pa. Super. 1992), appeal denied,
629 A.2d 1376 (Pa. 1993) ................................................................................................................ 3:39 629 A.2d 1376 (Pa. 1993) ................................................................................................................ 3:39
Commonwealth v. Fox, 953 A.2d 808 (Pa. Super. 2008) ................................................... 9:16 Commonwealth v. Fox, 953 A.2d 808 (Pa. Super. 2008) ................................................... 9:16
Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. 1990), Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. 1990),
appeal denied, 584 A.2d 312 (Pa. 1990) ........................................................................ 7:49, 7:50 appeal denied, 584 A.2d 312 (Pa. 1990) ........................................................................ 7:49, 7:50
Commonwealth v. Freeman Commonwealth v. Freeman

441 A.2d 1327 (Pa. Super. 1982) ............................................................... 7:31, 7:32, 7:33, 7:35, 441 A.2d 1327 (Pa. Super. 1982) ............................................................... 7:31, 7:32, 7:33, 7:35,
Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003) .............................. 6:28, 6:30, 7:59 Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003) .............................. 6:28, 6:30, 7:59
Commonwealth v. Fulton, 413 A.2d 742 (Pa.Super. 1979) ................................................ 7:6 Commonwealth v. Fulton, 413 A.2d 742 (Pa.Super. 1979) ................................................ 7:6
Commonwealth v. Gabrielson, 536 A.2d 401 (Pa. Super. 1988), Commonwealth v. Gabrielson, 536 A.2d 401 (Pa. Super. 1988),
appeal denied, 542 A.2d 1365 (Pa. 1988) ....................................................................... 7:38, 7:11 appeal denied, 542 A.2d 1365 (Pa. 1988) ....................................................................... 7:38, 7:11
Commonwealth v. Gaddis, 639 A.2d 462 (Pa.Super. 1994), Commonwealth v. Gaddis, 639 A.2d 462 (Pa.Super. 1994),
appeal denied, 649 A.2d 668 (Pa. 1994) ........................................................... 5:24, 6:46, 9:62 appeal denied, 649 A.2d 668 (Pa. 1994) ........................................................... 5:24, 6:46, 9:62
Commonwealth v. Gaerttner, 484 A.2d 92 (Pa. Super. 1984) ............................. 7:88, 7:89 Commonwealth v. Gaerttner, 484 A.2d 92 (Pa. Super. 1984) ............................. 7:88, 7:89
Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999) ................... 11:23, 11:24 Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999) ................... 11:23, 11:24
Commonwealth v. Gainer, 580 A.2d 333 (Pa. Super. 1990), Commonwealth v. Gainer, 580 A.2d 333 (Pa. Super. 1990),
Commonwealth v. Gaines, 74 A.3d 10 (Pa. Super. 2013) ................................................. 6:17 Commonwealth v. Gaines, 74 A.3d 10 (Pa. Super. 2013) ................................................. 6:17
Commonwealth v. Gallagher, 547 A.2d 355 (Pa. 1988) ........................... 3:10, 8:14, 8:19 Commonwealth v. Gallagher, 547 A.2d 355 (Pa. 1988) ........................... 3:10, 8:14, 8:19
Commonwealth v. Gallagher, 924 A.2d 636 (Pa. 2007) .......................................... 1:22, 4:6 Commonwealth v. Gallagher, 924 A.2d 636 (Pa. 2007) .......................................... 1:22, 4:6
Commonwealth v. Garcia, 72 A.3d 681 (Pa. Super. 2013) .............................................. 10:5 Commonwealth v. Garcia, 72 A.3d 681 (Pa. Super. 2013) .............................................. 10:5
R-13 R-13
Commonwealth v. Geiger, 944 A.2d 85 (Pa. Super. 2008) ............. 7:24, 7:27, 7:28, 7:31 Commonwealth v. Geiger, 944 A.2d 85 (Pa. Super. 2008) ............. 7:24, 7:27, 7:28, 7:31
Commonwealth v. Gemelli, 474 A.2d 294 (Pa. Super. 1984) .......................................... 6:42 Commonwealth v. Gemelli, 474 A.2d 294 (Pa. Super. 1984) .......................................... 6:42
Commonwealth v. Gerstner, 656 A.2d 108 (Pa. 1995) ...................................................... 5:42 Commonwealth v. Gerstner, 656 A.2d 108 (Pa. 1995) ...................................................... 5:42
Commonwealth v. Gibbons, 784 A.2d 776 (Pa. 2001) ....................................................... 5:43 Commonwealth v. Gibbons, 784 A.2d 776 (Pa. 2001) ....................................................... 5:43
Commonwealth v. Gibbs, 642 A.2d 1132 (Pa. Super. 1994) .................... 6:56, 7:93, 7:95 Commonwealth v. Gibbs, 642 A.2d 1132 (Pa. Super. 1994) .................... 6:56, 7:93, 7:95
Commonwealth v. Glass, 50 A.3d 720 (Pa. Super. 2012) ............................................... 10:28 Commonwealth v. Glass, 50 A.3d 720 (Pa. Super. 2012) ............................................... 10:28
Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000), Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000),
appeal denied, 563 Pa. 672, 759 A.2d 920 (2000) ............................................ 9:8, 9:9, 10:27 appeal denied, 563 Pa. 672, 759 A.2d 920 (2000) ............................................ 9:8, 9:9, 10:27
Commonwealth v. Goldblum, 447 A.2d 234 (Pa. 1982) ................................................... 7:88 Commonwealth v. Goldblum, 447 A.2d 234 (Pa. 1982) ................................................... 7:88
Commonwealth v. Gordon, 652 A.2d 317 (Pa. Super. 1994), affd, Commonwealth v. Gordon, 652 A.2d 317 (Pa. Super. 1994), affd,
673 A.2d 866 (Pa. 1996) ........................................................................................... 2:15, 7:49, 10:7 673 A.2d 866 (Pa. 1996) ........................................................................................... 2:15, 7:49, 10:7
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) ............................................................ 6:37 Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) ............................................................ 6:37
Commonwealth v. Gravely, 970 A.2d 1137 (Pa. 2009) ................................................. 10:11 Commonwealth v. Gravely, 970 A.2d 1137 (Pa. 2009) ................................................. 10:11
Commonwealth v. Gray, 867 A.2d 560 (Pa. Super. 2005), Commonwealth v. Gray, 867 A.2d 560 (Pa. Super. 2005),
appeal denied, 879 A.2d 781 (Pa. 2005) ...................................................................... 7:99, 7:100 appeal denied, 879 A.2d 781 (Pa. 2005) ...................................................................... 7:99, 7:100
Commonwealth v. Grayson, 549 A.2d 593 (Pa. Super. 1988) ...................... 2:16-17, 3:36 Commonwealth v. Grayson, 549 A.2d 593 (Pa. Super. 1988) ...................... 2:16-17, 3:36
Commonwealth v. Green, 380 A.2d 798 (Pa. Super. 1977) .............................................. 7:67 Commonwealth v. Green, 380 A.2d 798 (Pa. Super. 1977) .............................................. 7:67
Commonwealth v. Green, 409 A.2d 371 (Pa. 1979) ........................................................... 7:35 Commonwealth v. Green, 409 A.2d 371 (Pa. 1979) ........................................................... 7:35
Commonwealth v. Green, 862 A.2d 613 (Pa.Super. 2004), Commonwealth v. Green, 862 A.2d 613 (Pa.Super. 2004),
Commonwealth v. Griffin, 684 A.2d 589, 594 (Pa. Super. 1996) ............................... 7:104 Commonwealth v. Griffin, 684 A.2d 589, 594 (Pa. Super. 1996) ............................... 7:104
Commonwealth v. Griffin, 785 A.2d 501 (Pa. Super. 2001) ........................................ 10:19 Commonwealth v. Griffin, 785 A.2d 501 (Pa. Super. 2001) ........................................ 10:19
Commonwealth v. Griffith, 985 A.2d 230 (Pa. Super. 2009), Commonwealth v. Griffith, 985 A.2d 230 (Pa. Super. 2009),
rev. on other grounds, 32 A.3d 1231 (Pa. 2011) ..................................................................... 5:35 rev. on other grounds, 32 A.3d 1231 (Pa. 2011) ..................................................................... 5:35
Commonwealth v. Groff, 514 A.2d 1382 (Pa. Super. 1986), Commonwealth v. Groff, 514 A.2d 1382 (Pa. Super. 1986),
appeal denied, 531 A.2d 428 (Pa. 1987) ................................................................................ 7:102 appeal denied, 531 A.2d 428 (Pa. 1987) ................................................................................ 7:102
R-14 R-14
Commonwealth v. Groff, 548 A.2d 1237 (Pa. Super. 1988) ................................. 5:40, 6:43 Commonwealth v. Groff, 548 A.2d 1237 (Pa. Super. 1988) ................................. 5:40, 6:43
Commonwealth v. Grove, 526 A.2d 369 (Pa. Super. 1987), Commonwealth v. Grove, 526 A.2d 369 (Pa. Super. 1987),
Commonwealth v. Guy, 686 A.2d 397 (Pa. 1996) ............................... 5:22, 6:46, 6:47, 7:19 Commonwealth v. Guy, 686 A.2d 397 (Pa. 1996) ............................... 5:22, 6:46, 6:47, 7:19
Commonwealth v. Gwynn, 723 A.2d 143 (Pa. 1999), cert. denied, Commonwealth v. Gwynn, 723 A.2d 143 (Pa. 1999), cert. denied,
528 U.S. 969 (1999) ................................................................................................................ 7:40, 7:42 528 U.S. 969 (1999) ................................................................................................................ 7:40, 7:42
Commonwealth v. G.Y., 63 A.3d 259, 267 (Pa. Super. 2013) .......................... 7:107, 7:109 Commonwealth v. G.Y., 63 A.3d 259, 267 (Pa. Super. 2013) .......................... 7:107, 7:109
Commonwealth v. Hackenberger, 836 A.2d 2 (Pa. 2003) ............................................... 9:53 Commonwealth v. Hackenberger, 836 A.2d 2 (Pa. 2003) ............................................... 9:53
Commonwealth v. Hacker, 959 A.2d 380 (Pa. Super. 2008) .......................................... 4:35 Commonwealth v. Hacker, 959 A.2d 380 (Pa. Super. 2008) .......................................... 4:35
Commonwealth v. Hacker, 15 A.3d 333 (Pa. 2011) ............................................................ 3:14 Commonwealth v. Hacker, 15 A.3d 333 (Pa. 2011) ............................................................ 3:14
Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013) ............................. 11:26 Commonwealth v. Hainesworth, 82 A.3d 444 (Pa. Super. 2013) ............................. 11:26
Commonwealth v. Hall, 867 A.2d 619 (Pa. Super. 2005), Commonwealth v. Hall, 867 A.2d 619 (Pa. Super. 2005),
Commonwealth v. Hall, 418 A.2d 623 (Pa. Super. 1980) ......................... 3:25, 5:38, 7:93 Commonwealth v. Hall, 418 A.2d 623 (Pa. Super. 1980) ......................... 3:25, 5:38, 7:93
Commonwealth v. Hall, 867 A.2d 619, 633 (Pa.Super. 2005), appeal denied, Commonwealth v. Hall, 867 A.2d 619, 633 (Pa.Super. 2005), appeal denied,
586 Pa. 756, 895 A.2d 549 (2006) ................................................................................................ 8:10 586 Pa. 756, 895 A.2d 549 (2006) ................................................................................................ 8:10
Commonwealth v. Halsted, 666 A.2d 655 (Pa. 1995) ........................................................ 7:71 Commonwealth v. Halsted, 666 A.2d 655 (Pa. 1995) ........................................................ 7:71
Commonwealth v. Halye, 719 A.2d 763 (Pa. Super. 1998) .............................................. 4:10 Commonwealth v. Halye, 719 A.2d 763 (Pa. Super. 1998) .............................................. 4:10
Commonwealth v. Hamilton, 766 A.2d 874 (Pa. Super. 2001) ...................................... 5:36 Commonwealth v. Hamilton, 766 A.2d 874 (Pa. Super. 2001) ...................................... 5:36
Commonwealth v. Hancharik, 565 A.2d 782 (Pa. Super. 1989), Commonwealth v. Hancharik, 565 A.2d 782 (Pa. Super. 1989),
affd, 633 A.2d 1074 (Pa. 1993) .................................................................................... 7:106, 7:107 affd, 633 A.2d 1074 (Pa. 1993) .................................................................................... 7:106, 7:107
Commonwealth v. Hann, 81 A.3d 57 (Pa. 2013) ........................................... 6:16, 6:17, 6:18 Commonwealth v. Hann, 81 A.3d 57 (Pa. 2013) ........................................... 6:16, 6:17, 6:18
Commonwealth v. Harper, 614 A.2d 1180 (Pa. Super. 1992), Commonwealth v. Harper, 614 A.2d 1180 (Pa. Super. 1992),
Commonwealth v. Harrell, 65 A.3d 420 (Pa. Super. 2013) ............................................. 8:38 Commonwealth v. Harrell, 65 A.3d 420 (Pa. Super. 2013) ............................................. 8:38
Commonwealth v. Hart, 28 A.3d 898 (Pa. 2011) ........................................................... 4:6, 4:7 Commonwealth v. Hart, 28 A.3d 898 (Pa. 2011) ........................................................... 4:6, 4:7
R-15 R-15
Commonwealth v. Harvard, 64 A.3d 690 (Pa. Super. 2013), Commonwealth v. Harvard, 64 A.3d 690 (Pa. Super. 2013),
Commonwealth v. Harvey, 542 A.2d 1027 (Pa. Super. 1988) ........................................ 5:42 Commonwealth v. Harvey, 542 A.2d 1027 (Pa. Super. 1988) ........................................ 5:42
Commonwealth v. Haughwout, 837 A.2d 480 (Pa. Super. 2003) ................................ 9:27 Commonwealth v. Haughwout, 837 A.2d 480 (Pa. Super. 2003) ................................ 9:27
Commonwealth v. Hawk, 709 A.2d 373, (Pa. 1998) ........................................................... 8:36 Commonwealth v. Hawk, 709 A.2d 373, (Pa. 1998) ........................................................... 8:36
Commonwealth v. Hawkins, 441 A.2d 1308 (Pa. Super. 1982) ..................................... 5:40 Commonwealth v. Hawkins, 441 A.2d 1308 (Pa. Super. 1982) ..................................... 5:40
Commonwealth v. Hawkins, 614 A.2d 1198 (Pa. Super. 1992) ..................................... 2:17 Commonwealth v. Hawkins, 614 A.2d 1198 (Pa. Super. 1992) ..................................... 2:17
Commonwealth v. Hawkins, 701 A.2d 492 (Pa. 1997), Commonwealth v. Hawkins, 701 A.2d 492 (Pa. 1997),
cert. denied, 523 U.S. 1083 (1998) ............................................................................................... 8:26 cert. denied, 523 U.S. 1083 (1998) ............................................................................................... 8:26
Commonwealth v. Hawkins, 894 A.2d 716, (Pa. 2006) ............................................ 5:6, 5:11 Commonwealth v. Hawkins, 894 A.2d 716, (Pa. 2006) ............................................ 5:6, 5:11
Commonwealth v. Hayden, 307 A.2d 389, (Pa. Super. 1973) ......................................... 5:14 Commonwealth v. Hayden, 307 A.2d 389, (Pa. Super. 1973) ......................................... 5:14
Commonwealth v. Heidnik, 587 A.2d 687, 690 (Pa. 1991) .............................................. 5:28 Commonwealth v. Heidnik, 587 A.2d 687, 690 (Pa. 1991) .............................................. 5:28
Commonwealth v. Heilman, 867 A.2d 542 (Pa.Super. 2004), appeal denied, Commonwealth v. Heilman, 867 A.2d 542 (Pa.Super. 2004), appeal denied,
876 A.2d 393 (Pa. 2005) ........................................................................................... 8:26, 8:30, 10:4 876 A.2d 393 (Pa. 2005) ........................................................................................... 8:26, 8:30, 10:4
Commonwealth v. Heiser, 478 A.2d 1355 (Pa. Super. 1984) .......................................... 6:19 Commonwealth v. Heiser, 478 A.2d 1355 (Pa. Super. 1984) .......................................... 6:19
Commonwealth v. Hemingway, Commonwealth v. Hemingway,

534 A.2d 1104 (Pa.Super. 1987) ........................................................................... 7:66, 7:67, 8:37 534 A.2d 1104 (Pa.Super. 1987) ........................................................................... 7:66, 7:67, 8:37
Commonwealth v. Henley, 474 A.2d 1115 (Pa. 1984) ............................................ 5:26, 5:27 Commonwealth v. Henley, 474 A.2d 1115 (Pa. 1984) ............................................ 5:26, 5:27
Commonwealth v. Henry, 569 A.2d 929 (Pa. 1990), cert. denied, Commonwealth v. Henry, 569 A.2d 929 (Pa. 1990), cert. denied,
499 U.S. 931 (1991) ................................................................................................................ 5:33, 8:31 499 U.S. 931 (1991) ................................................................................................................ 5:33, 8:31
Commonwealth v. Hernandez, 615 A.2d 1337 (Pa. Super. 1992) ................................ 8:16 Commonwealth v. Hernandez, 615 A.2d 1337 (Pa. Super. 1992) ................................ 8:16
Commonwealth v. Hernandez, 886 A.2d 231 (Pa. Super. 2005) .................................. 6:17 Commonwealth v. Hernandez, 886 A.2d 231 (Pa. Super. 2005) .................................. 6:17
Commonwealth v. Hess, 414 A.2d 1043 (Pa. 1980) ........................................................... 10:5 Commonwealth v. Hess, 414 A.2d 1043 (Pa. 1980) ........................................................... 10:5
Commonwealth v. Hess, 810 A.2d 1249 (Pa. 2002) .......................................... 10:15, 10:16 Commonwealth v. Hess, 810 A.2d 1249 (Pa. 2002) .......................................... 10:15, 10:16
Commonwealth v. Hetzel, 822 A.2d 747 (Pa. Super. 2003) ............................................. 6:35 Commonwealth v. Hetzel, 822 A.2d 747 (Pa. Super. 2003) ............................................. 6:35
R-16 R-16
Commonwealth v. Hickman, 309 A.2d 564 (Pa. 1973) ..................................................... 7:47 Commonwealth v. Hickman, 309 A.2d 564 (Pa. 1973) ..................................................... 7:47
Commonwealth v. Higby, 559 A.2d 939 (Pa. Super. 1989) ................................... 6:28, 6:56 Commonwealth v. Higby, 559 A.2d 939 (Pa. Super. 1989) ................................... 6:28, 6:56
Commonwealth v. Higginbottom, 678 A.2d 408 (Pa. Super. 1996) ............................ 6:43 Commonwealth v. Higginbottom, 678 A.2d 408 (Pa. Super. 1996) ............................ 6:43
Commonwealth v. Hill, 549 A.2d 199 (Pa. Super. 1988), Commonwealth v. Hill, 549 A.2d 199 (Pa. Super. 1988),
Commonwealth v. Hill, 761 A.2d 1188 (Pa. Super. 2000) ................................................... 9:8 Commonwealth v. Hill, 761 A.2d 1188 (Pa. Super. 2000) ................................................... 9:8
Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011) ................................................................ 10:15 Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011) ................................................................ 10:15
Commonwealth v. Hitner, 910 A.2d 721 (Pa. Super. 2006), appeal denied, Commonwealth v. Hitner, 910 A.2d 721 (Pa. Super. 2006), appeal denied,
926 A.2d 441 (Pa. 2007) ............................................................................................................... 10:24 926 A.2d 441 (Pa. 2007) ............................................................................................................... 10:24
Commonwealth v. Hock, 728 A.2d 943 (Pa. 1999) .............................................................. 6:43 Commonwealth v. Hock, 728 A.2d 943 (Pa. 1999) .............................................................. 6:43
Commonwealth v. Hoffman, 398 A.2d 658 (Pa. Super. 1979) ........................................ 5:40 Commonwealth v. Hoffman, 398 A.2d 658 (Pa. Super. 1979) ........................................ 5:40
Commonwealth v. Hoke, 962 A.2d 664 (Pa. 2009) .................................................. 3:45, 4:42 Commonwealth v. Hoke, 962 A.2d 664 (Pa. 2009) .................................................. 3:45, 4:42
Commonwealth v. Holder, 815 A.2d 1115 (Pa. Super. 2003), appeal denied, Commonwealth v. Holder, 815 A.2d 1115 (Pa. Super. 2003), appeal denied,
827 A.2d 430 (Pa. 2003) ............................................................................................... 2:6, 6:50, 7:19 827 A.2d 430 (Pa. 2003) ............................................................................................... 2:6, 6:50, 7:19
Commonwealth v. Holley, 945 A.2d 241 (Pa. Super. 2008), Commonwealth v. Holley, 945 A.2d 241 (Pa. Super. 2008),
Commonwealth v. Hood, 872 A.2d 175 (Pa. Super. 2005), appeal denied, Commonwealth v. Hood, 872 A.2d 175 (Pa. Super. 2005), appeal denied,
889 A.2d 88 (Pa. 2005) ............................................................. 7:43, 7:96, 7:100, 7:101, 10:18 889 A.2d 88 (Pa. 2005) ............................................................. 7:43, 7:96, 7:100, 7:101, 10:18
Commonwealth v. Hoover, 16 A.3d 1148 (Pa. Super. 2011) ........................................... 7:43 Commonwealth v. Hoover, 16 A.3d 1148 (Pa. Super. 2011) ........................................... 7:43
Commonwealth v. Howard, 402 A.2d 674 (Pa. Super. 1979) ............................................ 4:9 Commonwealth v. Howard, 402 A.2d 674 (Pa. Super. 1979) ............................................ 4:9
Commonwealth v. Howard, 749 A.2d 941 (Pa. Super. 2000) ......................................... 7:40 Commonwealth v. Howard, 749 A.2d 941 (Pa. Super. 2000) ......................................... 7:40
Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977) ..................................................... 6:37 Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977) ..................................................... 6:37
Commonwealth v. Huggins, 68 A.3d 962 (Pa. Super. 2013), appeal denied, Commonwealth v. Huggins, 68 A.3d 962 (Pa. Super. 2013), appeal denied,
80 A.3d 775 (Pa. 2013) ......................................................................................................................... 8:9 80 A.3d 775 (Pa. 2013) ......................................................................................................................... 8:9
Commonwealth v. Hughes, 555 A.2d 1264 (Pa. 1989) ........................................... 7:50, 7:87 Commonwealth v. Hughes, 555 A.2d 1264 (Pa. 1989) ........................................... 7:50, 7:87
Commonwealth v. Hunter, 60 A.3d 156 (Pa. Super. 2013) ............................. 7:108, 7:109 Commonwealth v. Hunter, 60 A.3d 156 (Pa. Super. 2013) ............................. 7:108, 7:109
R-17 R-17
Commonwealth v. Hunzer, 868 A.2d 498 (Pa. Super. 2005), Commonwealth v. Hunzer, 868 A.2d 498 (Pa. Super. 2005),
appeal denied, 880 A.2d 1237 (Pa. 2005) ........................................................... 7:78, 7:86, 7:91 appeal denied, 880 A.2d 1237 (Pa. 2005) ........................................................... 7:78, 7:86, 7:91
Commonwealth v. Impellizzeri, 661 A.2d 422 (Pa. Super. 1995), Commonwealth v. Impellizzeri, 661 A.2d 422 (Pa. Super. 1995),
appeal denied, 673 A.2d 332 (Pa. 1996) .......................................................... 7:7, 7:103, 7:104 appeal denied, 673 A.2d 332 (Pa. 1996) .......................................................... 7:7, 7:103, 7:104
Commonwealth v. Jackson, 849 A.2d 1254 (Pa. Super. 2004) ...................................... 10:5 Commonwealth v. Jackson, 849 A.2d 1254 (Pa. Super. 2004) ...................................... 10:5
Commonwealth v. Jacob, 867 A.2d 614 (Pa. Super 2005) ................................................ 2:10 Commonwealth v. Jacob, 867 A.2d 614 (Pa. Super 2005) ................................................ 2:10
Commonwealth v. Jacobs, 900 A.2d 368, (Pa. Super. 2006), Commonwealth v. Jacobs, 900 A.2d 368, (Pa. Super. 2006),
appeal denied, 591 Pa. 681, 917 A.2d 313 (2006) ............................................................... 9:60 appeal denied, 591 Pa. 681, 917 A.2d 313 (2006) ............................................................... 9:60
Commonwealth v. Jennings, 958 A.2d 536 (Pa. Super. 2008), Commonwealth v. Jennings, 958 A.2d 536 (Pa. Super. 2008),
Commonwealth v. Jette, 818 A.2d 533 (Pa. Super. 2003), Commonwealth v. Jette, 818 A.2d 533 (Pa. Super. 2003),
appeal denied, 833 A.2d 141 (Pa. 2003) ............................................................. 5:43, 5:44, 7:11 appeal denied, 833 A.2d 141 (Pa. 2003) ............................................................. 5:43, 5:44, 7:11
Commonwealth v. John, 596 A.2d 834 (Pa. Super. 1991) ................................................. 7:90 Commonwealth v. John, 596 A.2d 834 (Pa. Super. 1991) ................................................. 7:90
Commonwealth v. John, 854 A.2d 591 (Pa. Super. 2004) ................................................. 5:26 Commonwealth v. John, 854 A.2d 591 (Pa. Super. 2004) ................................................. 5:26
Commonwealth v. Johns, 812 A.2d 1260 (Pa. Super. 2002) .......................... 10:19, 10:20 Commonwealth v. Johns, 812 A.2d 1260 (Pa. Super. 2002) .......................... 10:19, 10:20
Commonwealth v. Johnson, 445 A.2d 509 (Pa. Super. 1982) .................................. 7:7, 7:8 Commonwealth v. Johnson, 445 A.2d 509 (Pa. Super. 1982) .................................. 7:7, 7:8
Commonwealth v. Johnson, 456 A.2d 988 (Pa. Super. 1983 .................... 6:34, 6:43, 6:48 Commonwealth v. Johnson, 456 A.2d 988 (Pa. Super. 1983 .................... 6:34, 6:43, 6:48
Commonwealth v. Johnson, 638 A.2d 940 (Pa. 1994) ............................................. 2:6, 6:50 Commonwealth v. Johnson, 638 A.2d 940 (Pa. 1994) ............................................. 2:6, 6:50
Commonwealth v. Johnson, 646 A.2d 1170 (Pa. 1994) ................. 5:11, 6:34, 6:43, 6:48 Commonwealth v. Johnson, 646 A.2d 1170 (Pa. 1994) ................. 5:11, 6:34, 6:43, 6:48
Commonwealth v. Johnson, 690 A.2d 274 (Pa. Super. 1997) .............................. 8:17, 8:18 Commonwealth v. Johnson, 690 A.2d 274 (Pa. Super. 1997) .............................. 8:17, 8:18
Commonwealth v. Johnson, 758 A.2d 166 (Pa. Super. 2000), Commonwealth v. Johnson, 758 A.2d 166 (Pa. Super. 2000),
Commonwealth v. Johnson, 788 A.2d 985 (Pa. Super. 2001) ......................................... 5:12 Commonwealth v. Johnson, 788 A.2d 985 (Pa. Super. 2001) ......................................... 5:12
Commonwealth v. Johnson, 828 A.2d 1009 (Pa. 2003) .................................................... 9:59 Commonwealth v. Johnson, 828 A.2d 1009 (Pa. 2003) .................................................... 9:59
Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009) ....................................................... 5:12 Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009) ....................................................... 5:12
Commonwealth v. Jones, 602 A.2d 820 (Pa. 1992) ................................................................ 5:9 Commonwealth v. Jones, 602 A.2d 820 (Pa. 1992) ................................................................ 5:9
R-18 R-18
Commonwealth v. Jones, 668 A.2d 4913 (Pa. 1995) ................................... 6:30, 6:32, 6:34 Commonwealth v. Jones, 668 A.2d 4913 (Pa. 1995) ................................... 6:30, 6:32, 6:34
Commonwealth v. Jones, Commonwealth v. Jones,

672 A.2d 1353 (Pa. Super. 1996) ....................................................... 2:6, 2:13, 7:34, 7:36, 7:37 672 A.2d 1353 (Pa. Super. 1996) ....................................................... 2:6, 2:13, 7:34, 7:36, 7:37
Commonwealth v. Jones, 744 A.2d 310 (Pa. Super. 1999) ............................................... 4:12 Commonwealth v. Jones, 744 A.2d 310 (Pa. Super. 1999) ............................................... 4:12
Commonwealth v. Jones, 811 A.2d 1057 (Pa. Super. 2002), Commonwealth v. Jones, 811 A.2d 1057 (Pa. Super. 2002),
Commonwealth v. Jones, 826 A.2d 900 (Pa. Super. 2003) ....................... 6:46, 6:48, 10:7 Commonwealth v. Jones, 826 A.2d 900 (Pa. Super. 2003) ....................... 6:46, 6:48, 10:7
Commonwealth v. Jones, 899 A.2d 353 (Pa. Super. 2006) ............... 6:6, 6:14, 6:18, 6:19 Commonwealth v. Jones, 899 A.2d 353 (Pa. Super. 2006) ............... 6:6, 6:14, 6:18, 6:19
Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001) ..................................... 10:32 Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001) ..................................... 10:32
Commonwealth v. Jorden, 482 A.2d 573 (Pa. Super. 1984) ............................................ 7:61 Commonwealth v. Jorden, 482 A.2d 573 (Pa. Super. 1984) ............................................ 7:61
Commonwealth v. Jorgenson, 517 A.2d 1287 (Pa. 1986) ................................................ 6:50 Commonwealth v. Jorgenson, 517 A.2d 1287 (Pa. 1986) ................................................ 6:50
Commonwealth v. Judd, 897 A.2d 1224 (Pa. Super. 2006), appeal denied, Commonwealth v. Judd, 897 A.2d 1224 (Pa. Super. 2006), appeal denied,
912 A.2d 1291 (Pa. 2006) ........................................... 4:17, 5:46, 5:47, 5:48, 7:13, 7:14, 7:90 912 A.2d 1291 (Pa. 2006) ........................................... 4:17, 5:46, 5:47, 5:48, 7:13, 7:14, 7:90
Commonwealth v. Jurczak, 86 A.3d 265 (Pa. Super. 2014) ............................................ 9:56 Commonwealth v. Jurczak, 86 A.3d 265 (Pa. Super. 2014) ............................................ 9:56
Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993) ........................... 3:10, 3:15. 3:16 Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993) ........................... 3:10, 3:15. 3:16
Commonwealth v. Karetny, 880 A.2d 505 (Pa. 2005) ...................................................... 10:7 Commonwealth v. Karetny, 880 A.2d 505 (Pa. 2005) ...................................................... 10:7
Commonwealth v. Kellam, 719 A.2d 792 (Pa. Super. 1998) ............................................. 4:9 Commonwealth v. Kellam, 719 A.2d 792 (Pa. Super. 1998) ............................................. 4:9
Commonwealth v. Kelley, 801 A.2d 551 (Pa. 2002) ......... 2:10, 2:19, 2:20-21, 3:8, 3:31 Commonwealth v. Kelley, 801 A.2d 551 (Pa. 2002) ......... 2:10, 2:19, 2:20-21, 3:8, 3:31
Commonwealth v. Keys, 814 A.2d 1256 (Pa. Super. 2003) .............................................. 7:99 Commonwealth v. Keys, 814 A.2d 1256 (Pa. Super. 2003) .............................................. 7:99
Commonwealth v. Kemmerer, 33 A.3d 39 (Pa. Super. 2011) ....................................... 7:27 Commonwealth v. Kemmerer, 33 A.3d 39 (Pa. Super. 2011) ....................................... 7:27
Commonwealth v. Kennedy, Commonwealth v. Kennedy,

604 A.2d 1036 (Pa. Super. 1992) ................................................................ 6:57, 6:60, 6:61, 6:62 604 A.2d 1036 (Pa. Super. 1992) ................................................................ 6:57, 6:60, 6:61, 6:62
Commonwealth v. Kerrigan, 920 A.2d 190 (Pa. Super. 2007), appeal denied, Commonwealth v. Kerrigan, 920 A.2d 190 (Pa. Super. 2007), appeal denied,
932 A.2d 1286 (Pa. 2007) ................................................................................. 2:17-18, 3:14, 3:25 932 A.2d 1286 (Pa. 2007) ................................................................................. 2:17-18, 3:14, 3:25
Commonwealth v. Killen, 680 A.2d 851 (Pa. 1996) ............................................................ 6:46 Commonwealth v. Killen, 680 A.2d 851 (Pa. 1996) ............................................................ 6:46
Commonwealth v. Killinger, 585 Pa. 92, 888 A.2d 592 (2005) .................................... 11:6 Commonwealth v. Killinger, 585 Pa. 92, 888 A.2d 592 (2005) .................................... 11:6
R-19 R-19
Commonwealth v. King, 959 A.2d 405 (Pa. Super. 2008) ................................................ 7:77 Commonwealth v. King, 959 A.2d 405 (Pa. Super. 2008) ................................................ 7:77
Commonwealth v. Kirkner, 805 A.2d 514 (Pa. 2002) ........................................................ 7:89 Commonwealth v. Kirkner, 805 A.2d 514 (Pa. 2002) ........................................................ 7:89
Commonwealth v. Kitchen, 814 A.2d 209 (Pa. Super. 2002) ......................................... 4:25 Commonwealth v. Kitchen, 814 A.2d 209 (Pa. Super. 2002) ......................................... 4:25
Commonwealth v. K.M., 680 A.2d 1168 (Pa. Super. 1996) .............................................. 3:39 Commonwealth v. K.M., 680 A.2d 1168 (Pa. Super. 1996) .............................................. 3:39
Commonwealth v. Knapp, 542 A.2d 546 (Pa. Super. 1988) ............................................ 7:88 Commonwealth v. Knapp, 542 A.2d 546 (Pa. Super. 1988) ............................................ 7:88
Commonwealth v. Knight, 611 A.2d 1199 (Pa. Super. 1992), Commonwealth v. Knight, 611 A.2d 1199 (Pa. Super. 1992),
Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225 (1999), Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225 (1999),
cert. denied, 531 U.S. 829 (2000) ....................................................................................... 8:22, 8:26 cert. denied, 531 U.S. 829 (2000) ....................................................................................... 8:22, 8:26
Commonwealth v. Knowles, 637 A.2d 331 (Pa. Super. 1994) ........................................ 6:38 Commonwealth v. Knowles, 637 A.2d 331 (Pa. Super. 1994) ........................................ 6:38
Commonwealth v. Kohlie, 811 A.2d 1010 (Pa. Super. 2002) .......................................... 6:43 Commonwealth v. Kohlie, 811 A.2d 1010 (Pa. Super. 2002) .......................................... 6:43
Commonwealth v. Kolenda, 676 A.2d 1187 (Pa. 1996) ................................................... 5:10 Commonwealth v. Kolenda, 676 A.2d 1187 (Pa. 1996) ................................................... 5:10
Commonwealth v. Kratsas, 764 A.2d 20 (Pa. 2001) .......................................................... 5:39 Commonwealth v. Kratsas, 764 A.2d 20 (Pa. 2001) .......................................................... 5:39
Commonwealth v. Kriner, 915 A.2d 653 (Pa. Super. 2007) ............................... 7:80, 7:81 Commonwealth v. Kriner, 915 A.2d 653 (Pa. Super. 2007) ............................... 7:80, 7:81
Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. 2002), Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. 2002),
appeal denied, 573 Pa. 671, 821 A.2d 586 (2003) ................................................................. 9:27 appeal denied, 573 Pa. 671, 821 A.2d 586 (2003) ................................................................. 9:27
Commonwealth v. Kunkle, 623 A.2d 336 (Pa. Super. 1993), appeal denied, Commonwealth v. Kunkle, 623 A.2d 336 (Pa. Super. 1993), appeal denied,
637 A.2d 281 (Pa. 1993) ........................................................................................................... 2:4, 6:48 637 A.2d 281 (Pa. 1993) ........................................................................................................... 2:4, 6:48
Commonwealth v. Kuzmanko, 709 A.2d 392 (Pa. Super. 1998), Commonwealth v. Kuzmanko, 709 A.2d 392 (Pa. Super. 1998),
Commonwealth v. Laich, 777 A.2d 1057 (Pa. 2001) .......................................................... 7:60 Commonwealth v. Laich, 777 A.2d 1057 (Pa. 2001) .......................................................... 7:60
Commonwealth v. Laird, 988 A.2d 618 (Pa. 2010), Commonwealth v. Laird, 988 A.2d 618 (Pa. 2010),
cert. denied, 131 S.Ct. 659 (2010) ................................................................................................. 7:75 cert. denied, 131 S.Ct. 659 (2010) ................................................................................................. 7:75
Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013) ..................................................... 10:20 Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013) ..................................................... 10:20
Commonwealth v. Lambert, 723 A.2d 684 (Pa. Super. 1998) .................................... 10:11 Commonwealth v. Lambert, 723 A.2d 684 (Pa. Super. 1998) .................................... 10:11
Commonwealth v. Lane, 555 A.2d 1246 (Pa. 1989) .............................................. 2:6-7, 7:33 Commonwealth v. Lane, 555 A.2d 1246 (Pa. 1989) .............................................. 2:6-7, 7:33
Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988) .................................................... 7:42, 7:49 Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988) .................................................... 7:42, 7:49
R-20 R-20
Commonwealth v. Leavy, 1469 EDA 2009, (Pa. Super. Filed July 12, 2010) Commonwealth v. Leavy, 1469 EDA 2009, (Pa. Super. Filed July 12, 2010)
(unpublished memorandum) ......................................................................................................... 2:24 (unpublished memorandum) ......................................................................................................... 2:24
Commonwealth v. Lebo, 795 A.2d 987 (Pa. 2002) ............................................................. 4:36 Commonwealth v. Lebo, 795 A.2d 987 (Pa. 2002) ............................................................. 4:36
Commonwealth v. Leddington, 908 A.2d 328 (Pa. Super. 2006), appeal denied, Commonwealth v. Leddington, 908 A.2d 328 (Pa. Super. 2006), appeal denied,
940 A.2d 363 (Pa. 2007) .................................................................................................................. 11:6 940 A.2d 363 (Pa. 2007) .................................................................................................................. 11:6
Commonwealth v. Lee, 638 A.2d 1006 (Pa. Super. 1994), appeal denied, Commonwealth v. Lee, 638 A.2d 1006 (Pa. Super. 1994), appeal denied,
647 A.2d 898 (Pa. 1994) ................................................................................................................... 7:38 647 A.2d 898 (Pa. 1994) ................................................................................................................... 7:38
Commonwealth v. Lee, 935 A.2d 865 (Pa. 2007) ...................................................... 11:6, 11:7 Commonwealth v. Lee, 935 A.2d 865 (Pa. 2007) ...................................................... 11:6, 11:7
Commonwealth v. Lefever, 30 A.2d 364 (Pa. Super. 1943) ............................................. 5:36 Commonwealth v. Lefever, 30 A.2d 364 (Pa. Super. 1943) ............................................. 5:36
Commonwealth v. Leidig, 956 A.2d 399 (Pa. 2008) ............................................ 11:7, 11:24 Commonwealth v. Leidig, 956 A.2d 399 (Pa. 2008) ............................................ 11:7, 11:24
Commonwealth v. Leppard, 413 A.2d 424 (Pa. Super. 1979) ........................................ 3:40 Commonwealth v. Leppard, 413 A.2d 424 (Pa. Super. 1979) ........................................ 3:40
Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011) ................................................. 7:6, 10:29 Commonwealth v. Lesko, 15 A.3d 345 (Pa. 2011) ................................................. 7:6, 10:29
Commonwealth v. Lester, 722 A.2d 997 (Pa. 1998) ........................................................... 7:59 Commonwealth v. Lester, 722 A.2d 997 (Pa. 1998) ........................................................... 7:59
Commonwealth v. Levanduski, 907 A.2d 3 (Pa. Super. 2006), appeal denied, Commonwealth v. Levanduski, 907 A.2d 3 (Pa. Super. 2006), appeal denied,
919 A.2d 955 (Pa. 2007), cert. denied, 552 U.S. 823 (2007) .............................................. 7:60 919 A.2d 955 (Pa. 2007), cert. denied, 552 U.S. 823 (2007) .............................................. 7:60
Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013) ........................ 4:27, 4:35, 10:28 Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013) ........................ 4:27, 4:35, 10:28
Commonwealth v. Lippert, 85 A.3d 1095 (Pa. Super. 2014) ........................... 9:17, 11:26 Commonwealth v. Lippert, 85 A.3d 1095 (Pa. Super. 2014) ........................... 9:17, 11:26
Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992) .............................................. 7:70 Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992) .............................................. 7:70
Commonwealth v. Lloyd, 567 A.2d 1357 (Pa. 1989) .......................................................... 6:52 Commonwealth v. Lloyd, 567 A.2d 1357 (Pa. 1989) .......................................................... 6:52
Commonwealth v. L.N., 787 A.2d 1064, (Pa. Super. 2001), Commonwealth v. L.N., 787 A.2d 1064, (Pa. Super. 2001),
Commonwealth v. Lofton, 57 A.3d 1270 (Pa. Super. 2012), appeal denied, Commonwealth v. Lofton, 57 A.3d 1270 (Pa. Super. 2012), appeal denied,
69 A.3d 601 (Pa. 2013) ................................................................................................................... 10:24 69 A.3d 601 (Pa. 2013) ................................................................................................................... 10:24
Commonwealth v. Long, 753 A.2d 272 (Pa. Super. 2000) ................................................ 6:26 Commonwealth v. Long, 753 A.2d 272 (Pa. Super. 2000) ................................................ 6:26
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) ............................................. 10:14, 10:18 Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) ............................................. 10:14, 10:18
Commonwealth v. Louden, 803 A.2d 1181 (Pa. 2002) ........................................... 5:41, 5:45 Commonwealth v. Louden, 803 A.2d 1181 (Pa. 2002) ........................................... 5:41, 5:45
R-21 R-21
Commonwealth v. Lukowich, 875 A.2d 1169 (Pa. Super. 2005), Commonwealth v. Lukowich, 875 A.2d 1169 (Pa. Super. 2005),
appeal denied, 885 A.2d 41 (Pa. 2005) ............................................................................ 5:47, 7:14 appeal denied, 885 A.2d 41 (Pa. 2005) ............................................................................ 5:47, 7:14
Commonwealth v. Luktisch, 680 A.2d 877 (Pa. Super. 1996) ........................................ 7:50 Commonwealth v. Luktisch, 680 A.2d 877 (Pa. Super. 1996) ........................................ 7:50
Commonwealth v. Lungin, 77 Pa. D. & C.4th 267 (Bucks Cty. 2005) ........................... 3:13 Commonwealth v. Lungin, 77 Pa. D. & C.4th 267 (Bucks Cty. 2005) ........................... 3:13
Commonwealth v. Luster, 71 A.3d 1029 (Pa. Super. 2013) .................. 7:39, 7:61, 7:107 Commonwealth v. Luster, 71 A.3d 1029 (Pa. Super. 2013) .................. 7:39, 7:61, 7:107
Commonwealth v. Ly, 599 A.2d 613 (Pa. 1991) .................................................................... 7:71 Commonwealth v. Ly, 599 A.2d 613 (Pa. 1991) .................................................................... 7:71
Commonwealth v. Lynch, 57 A.3d 120 (Pa. Super. 2012), Commonwealth v. Lynch, 57 A.3d 120 (Pa. Super. 2012),
Commonwealth v. Lyons, 833 A.2d 245 (Pa. Super. 2003) .................................. 7:10, 7:80 Commonwealth v. Lyons, 833 A.2d 245 (Pa. Super. 2003) .................................. 7:10, 7:80
Commonwealth v. Lyons, 79 A.3d 1053 (Pa. 2013) ........................................................ 10:24 Commonwealth v. Lyons, 79 A.3d 1053 (Pa. 2013) ........................................................ 10:24
Commonwealth v. Mackert, 781 A.2d 178 (Pa. Super. 2001) ........................................ 4:15 Commonwealth v. Mackert, 781 A.2d 178 (Pa. Super. 2001) ........................................ 4:15
Commonwealth v. Majorana, 470 A.2d 80 (Pa. 1983) ........................................... 6:49, 6:50 Commonwealth v. Majorana, 470 A.2d 80 (Pa. 1983) ........................................... 6:49, 6:50
Commonwealth v. Maldonado, 838 A.2d 710 (Pa. 2003) .............. 9:23, 9:24, 9:26, 11:5 Commonwealth v. Maldonado, 838 A.2d 710 (Pa. 2003) .............. 9:23, 9:24, 9:26, 11:5
Commonwealth v. Malone, 514 A.2d 612 (Pa. Super. 1986) .......................................... 6:32 Commonwealth v. Malone, 514 A.2d 612 (Pa. Super. 1986) .......................................... 6:32
Commonwealth v. Malovich, 903 A.2d 1247 (Pa. Super. 2006) ................................ 10:28 Commonwealth v. Malovich, 903 A.2d 1247 (Pa. Super. 2006) ................................ 10:28
Commonwealth v. Manchas, 633 A.2d 618 (Pa. Super. 1993) ....................................... 6:34 Commonwealth v. Manchas, 633 A.2d 618 (Pa. Super. 1993) ....................................... 6:34
Commonwealth v. Mangini, 425 A.2d 734 (Pa. 1981) ....................................................... 7:75 Commonwealth v. Mangini, 425 A.2d 734 (Pa. 1981) ....................................................... 7:75
Commonwealth v. Markman, 916 A.2d 586 (Pa. 2007) ............................................. 10:23 Commonwealth v. Markman, 916 A.2d 586 (Pa. 2007) ............................................. 10:23
Commonwealth v. Marsh, 566 A.2d 296 (Pa. Super. 1989) ............................................ 5:13 Commonwealth v. Marsh, 566 A.2d 296 (Pa. Super. 1989) ............................................ 5:13
Commonwealth v. Marshall, 633 A.2d 1100 (Pa. 1993) ..................................................... 7:6 Commonwealth v. Marshall, 633 A.2d 1100 (Pa. 1993) ..................................................... 7:6
Commonwealth v. Martin, 351 A.2d 650 (Pa. 1976) ...................................... 9:8, 9:10, 9:11 Commonwealth v. Martin, 351 A.2d 650 (Pa. 1976) ...................................... 9:8, 9:10, 9:11
Commonwealth v. Masker, 34 A.3d 841 (Pa. Super. 2011), appeal denied, Commonwealth v. Masker, 34 A.3d 841 (Pa. Super. 2011), appeal denied,
47 A.3d 846 (2012) .......................................................................................................................... 11:42 47 A.3d 846 (2012) .......................................................................................................................... 11:42
Commonwealth v. Matis, 710 A.2d 12 (Pa. 1998) ................................................... 10:4, 10:7 Commonwealth v. Matis, 710 A.2d 12 (Pa. 1998) ................................................... 10:4, 10:7
R-22 R-22
Commonwealth v. Mattison, 82 A.3d 386 (Pa. 2013), cert. denied, Commonwealth v. Mattison, 82 A.3d 386 (Pa. 2013), cert. denied,
135 S.Ct. 221 (2014) ....................................................................................................................... 10:15 135 S.Ct. 221 (2014) ....................................................................................................................... 10:15
Commonwealth v. Mawhinney, 915 A.2d 107 (Pa. Super. 2006), Commonwealth v. Mawhinney, 915 A.2d 107 (Pa. Super. 2006),
appeal denied, 932 A.2d 1287 (Pa. 2007) ...................................................................... 7:48, 9:29 appeal denied, 932 A.2d 1287 (Pa. 2007) ...................................................................... 7:48, 9:29
Commonwealth v. Maxwell, 585 A.2d 1382 (Pa. Super. 1986) ......................................... 7:7 Commonwealth v. Maxwell, 585 A.2d 1382 (Pa. Super. 1986) ......................................... 7:7
Commonwealth v. Maxwell, 477 A.2d 1309 (Pa. 1984), Commonwealth v. Maxwell, 477 A.2d 1309 (Pa. 1984),
cert. denied, 469 U.S. 971 (1984) .................................................................................................. 7:90 cert. denied, 469 U.S. 971 (1984) .................................................................................................. 7:90
Commonwealth v. May, 656 A.2d 1335 (Pa. 1995) ............................................ 7:107, 7:108 Commonwealth v. May, 656 A.2d 1335 (Pa. 1995) ............................................ 7:107, 7:108
Commonwealth v. May, 887 A.2d 750 (Pa. 2005), Commonwealth v. May, 887 A.2d 750 (Pa. 2005),
Commonwealth v. May, 587 Pa. 184, 898 A.2d 559 (2006), cert. denied, Commonwealth v. May, 587 Pa. 184, 898 A.2d 559 (2006), cert. denied,
549 U.S. 1022 (2006) ......................................................................................................................... 8:14 549 U.S. 1022 (2006) ......................................................................................................................... 8:14
Commonwealth v. Mayfield, 827 A.2d 462 (Pa. Super. 2003) ........................................... 6:9 Commonwealth v. Mayfield, 827 A.2d 462 (Pa. Super. 2003) ........................................... 6:9
Commonwealth v. Mayfield, 832 A.2d 418 (Pa. 2003) ........................................... 3:28, 3:29 Commonwealth v. Mayfield, 832 A.2d 418 (Pa. 2003) ........................................... 3:28, 3:29
Commonwealth v. McAfee, 849 A.2d 270 (Pa. Super. 2004), appeal denied, Commonwealth v. McAfee, 849 A.2d 270 (Pa. Super. 2004), appeal denied,
860 A.2d 122 (Pa. 2004) ............................................................................................................... 10:26 860 A.2d 122 (Pa. 2004) ............................................................................................................... 10:26
Commonwealth v. McBride, 957 A.2d 752 (Pa. Super. 2008) .................................... 10:18 Commonwealth v. McBride, 957 A.2d 752 (Pa. Super. 2008) .................................... 10:18
Commonwealth v. McBurrows, 779 A.2d 509 (Pa. Super. 2001), appeal denied, Commonwealth v. McBurrows, 779 A.2d 509 (Pa. Super. 2001), appeal denied,
815 A.2d 632 (Pa. 2002), cert. denied, 540 U.S. 829 (2003) ........................................... 7:108 815 A.2d 632 (Pa. 2002), cert. denied, 540 U.S. 829 (2003) ........................................... 7:108
Commonwealth v. McCauley, 588 A.2d 941 (Pa.Super. 1991), Commonwealth v. McCauley, 588 A.2d 941 (Pa.Super. 1991),
appeal denied, 529 Pa. 656, 604 A.2d 248 (1992) ................................................................ 8:33 appeal denied, 529 Pa. 656, 604 A.2d 248 (1992) ................................................................ 8:33
Commonwealth v. McClintock, 639 A.2d 1222 (Pa. Super. 1994) ................................... 4:7 Commonwealth v. McClintock, 639 A.2d 1222 (Pa. Super. 1994) ................................... 4:7
Commonwealth v. McCloud, 322 A.2d 653 (Pa. 1974) ........................................... 7:64, 7:65 Commonwealth v. McCloud, 322 A.2d 653 (Pa. 1974) ........................................... 7:64, 7:65
Commonwealth v. McCrae, 832 A.2d 1026 (2003), cert. denied, Commonwealth v. McCrae, 832 A.2d 1026 (2003), cert. denied,
543 U.S. 822 (2004) ............................................................................................................................ 7:75 543 U.S. 822 (2004) ............................................................................................................................ 7:75
Commonwealth v. McCue, 487 A.2d 880 (Pa. Super. 1983) ........................................... 4:25 Commonwealth v. McCue, 487 A.2d 880 (Pa. Super. 1983) ........................................... 4:25
Commonwealth v. McDonough, 96 A.3d 1067 (Pa. Super. 2014) ............................. 11:23 Commonwealth v. McDonough, 96 A.3d 1067 (Pa. Super. 2014) ............................. 11:23
R-23 R-23
Commonwealth v. McDougall, 841 A.2d 535 (Pa. Super. 2003), Commonwealth v. McDougall, 841 A.2d 535 (Pa. Super. 2003),
Commonwealth v. McEnany, 732 A.2d 1263 (Pa. Super. 1999) .................................... 7:64 Commonwealth v. McEnany, 732 A.2d 1263 (Pa. Super. 1999) .................................... 7:64
Commonwealth v. McIlvaine, 560 A.2d 155 (Pa. Super. 1989) ..................................... 2:19 Commonwealth v. McIlvaine, 560 A.2d 155 (Pa. Super. 1989) ..................................... 2:19
Commonwealth v. McKown, 79 A.3d 678 (Pa. Super. 2013) ........................................... 6:10 Commonwealth v. McKown, 79 A.3d 678 (Pa. Super. 2013) ........................................... 6:10
Commonwealth v. McLaurin, 45 A.3d 1131 (Pa. Super. 2012) ......................... 5:46, 7:15 Commonwealth v. McLaurin, 45 A.3d 1131 (Pa. Super. 2012) ......................... 5:46, 7:15
Commonwealth v. McMaster, 666 A.2d 724 (Pa. Super. 1995) .................................. 7:104 Commonwealth v. McMaster, 666 A.2d 724 (Pa. Super. 1995) .................................. 7:104
Commonwealth v. McMaster, 730 A.2d 524 (Pa. Super. 1999), Commonwealth v. McMaster, 730 A.2d 524 (Pa. Super. 1999),
Commonwealth v. McNaughton, 381 A.2d 929 (Pa. Super. 1977) ............................... 7:66 Commonwealth v. McNaughton, 381 A.2d 929 (Pa. Super. 1977) ............................... 7:66
Commonwealth. v. McPherson, 533 A.2d 1060 (Pa. Super. 1987) .................. 10:4, 10:6 Commonwealth. v. McPherson, 533 A.2d 1060 (Pa. Super. 1987) .................. 10:4, 10:6
Commonwealth v. Meals, 912 A.2d 213 (Pa. 2006) ............................................................ 9:27 Commonwealth v. Meals, 912 A.2d 213 (Pa. 2006) ............................................................ 9:27
Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa.Super. 1999), Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa.Super. 1999),
Commonwealth v. Mejia-Arias, 734 A.2d 870 (Pa. Super. 1999) ................................. 6:28 Commonwealth v. Mejia-Arias, 734 A.2d 870 (Pa. Super. 1999) ................................. 6:28
Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278 (Pa. Super. 2004) ............. 6:26 Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278 (Pa. Super. 2004) ............. 6:26
Commonwealth v. Mendez, 74 A.3d 256 (Pa. Super. 2013) ................................. 8:5, 10:15 Commonwealth v. Mendez, 74 A.3d 256 (Pa. Super. 2013) ................................. 8:5, 10:15
Commonwealth v. Mikell, 729 A.2d 566 (Pa. 1999) .............................................................. 5:9 Commonwealth v. Mikell, 729 A.2d 566 (Pa. 1999) .............................................................. 5:9
Commonwealth v. Miller, 600 A.2d 988 (Pa. Super. 1992) .............................................. 4:11 Commonwealth v. Miller, 600 A.2d 988 (Pa. Super. 1992) .............................................. 4:11
Commonwealth v. Miller, 657 A.2d 946 (Pa. Super. 1995) .............................................. 4:20 Commonwealth v. Miller, 657 A.2d 946 (Pa. Super. 1995) .............................................. 4:20
Commonwealth v. Miller, 765 A.2d 1151 (Pa. Super. 2001) ........................................... 6:26 Commonwealth v. Miller, 765 A.2d 1151 (Pa. Super. 2001) ........................................... 6:26
Commonwealth v. Miller, 787 A.2d 1036 (Pa. Super. 2001), appeal denied, Commonwealth v. Miller, 787 A.2d 1036 (Pa. Super. 2001), appeal denied,
568 Pa. 735, 798 A.2d 1288 (2002) ........................................................................................ 11:27 568 Pa. 735, 798 A.2d 1288 (2002) ........................................................................................ 11:27
Commonwealth v. Miller, 80 A.3d 806 (Pa. Super. 2013) ............................................... 9:17 Commonwealth v. Miller, 80 A.3d 806 (Pa. Super. 2013) ............................................... 9:17
Commonwealth v. Miner, 44 A.3d 684 (Pa. Super. 2012) ................................................ 6:47 Commonwealth v. Miner, 44 A.3d 684 (Pa. Super. 2012) ................................................ 6:47
R-24 R-24
Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000) ................................................ 7:11, 8:4 Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000) ................................................ 7:11, 8:4
Commonwealth v. Minich, 4 A.3d 1063 (Pa. Super. 2010) ..................................... 2:4, 8:15 Commonwealth v. Minich, 4 A.3d 1063 (Pa. Super. 2010) ..................................... 2:4, 8:15
Commonwealth v. Minnis, 83 A.3d 1047 (Pa. Super. 2014) ........................................... 10:4 Commonwealth v. Minnis, 83 A.3d 1047 (Pa. Super. 2014) ........................................... 10:4
Commonwealth v. Miskovitch, 64 A.3d 672 (Pa. Super. 2013), appeal denied, Commonwealth v. Miskovitch, 64 A.3d 672 (Pa. Super. 2013), appeal denied,
78 A.3d 1090 (Pa. 2013) ............................................................................................................... 10:25 78 A.3d 1090 (Pa. 2013) ............................................................................................................... 10:25
Commonwealth v. Mitchell, 570 A.2d 532 (Pa.Super. 1990), appeal denied, Commonwealth v. Mitchell, 570 A.2d 532 (Pa.Super. 1990), appeal denied,
589 A.2d 689 (Pa. 1990) ........................................................................................................ 7:65, 8:13 589 A.2d 689 (Pa. 1990) ........................................................................................................ 7:65, 8:13
Commonwealth v. Mitchell, 839 A.2d 202 (Pa. 2003) ....................................................... 5:28 Commonwealth v. Mitchell, 839 A.2d 202 (Pa. 2003) ....................................................... 5:28
Commonwealth v. Mitchell, 902 A.2d 430 (Pa. 2006), cert. denied, Commonwealth v. Mitchell, 902 A.2d 430 (Pa. 2006), cert. denied,
549 U.S. 1169 (2007) ......................................................................................................................... 7:53 549 U.S. 1169 (2007) ......................................................................................................................... 7:53
Commonwealth v. Mollett, 5 A.3d 291 (Pa. Super. 2010), appeal denied, Commonwealth v. Mollett, 5 A.3d 291 (Pa. Super. 2010), appeal denied,
14 A.3d 826 (Pa. 2011) ..................................................................................................................... 8:15 14 A.3d 826 (Pa. 2011) ..................................................................................................................... 8:15
Commonwealth v. Monaco, 869 A.2d 1026 (Pa. Super. 2005), Commonwealth v. Monaco, 869 A.2d 1026 (Pa. Super. 2005),
appeal denied, 880 A.2d 1238 (Pa. 2005) ........................................................................... 2:23-24 appeal denied, 880 A.2d 1238 (Pa. 2005) ........................................................................... 2:23-24
Commonwealth v. Monahan, 860 A.2d 180 (Pa. Super. 2004), Commonwealth v. Monahan, 860 A.2d 180 (Pa. Super. 2004),
Commonwealth v. Montgomery, 626 A.2d 109 (Pa. 1993) ............................................. 6:26 Commonwealth v. Montgomery, 626 A.2d 109 (Pa. 1993) ............................................. 6:26
Commonwealth v. Montgomery, 687 A.2d 1131 (Pa. Super. 1996) ............................ 3:11 Commonwealth v. Montgomery, 687 A.2d 1131 (Pa. Super. 1996) ............................ 3:11
Commonwealth v. Moody, 843 A.2d 402 (Pa. Super. 2004) ........................................... 9:27 Commonwealth v. Moody, 843 A.2d 402 (Pa. Super. 2004) ........................................... 9:27
Commonwealth v. Moon, 117 A.2d 96 (Pa. 1955) ............................................................... 7:86 Commonwealth v. Moon, 117 A.2d 96 (Pa. 1955) ............................................................... 7:86
Commonwealth v. Moore, 340 A.2d 447 (Pa. 1975) .............................................................. 7:8 Commonwealth v. Moore, 340 A.2d 447 (Pa. 1975) .............................................................. 7:8
Commonwealth v. Moore, 567 A.2d 701 (Pa. Super. 1989), Commonwealth v. Moore, 567 A.2d 701 (Pa. Super. 1989),
appeal denied, 575 A.2d 563 (Pa. 1990) ................................................................................. 7:103 appeal denied, 575 A.2d 563 (Pa. 1990) ................................................................................. 7:103
Commonwealth v. Moore, 584 A.2d 936 (Pa. 1991) ................................................ 6:25, 6:52 Commonwealth v. Moore, 584 A.2d 936 (Pa. 1991) ................................................ 6:25, 6:52
Commonwealth v. Moore, 980 A.2d 647 (Pa. Super. 2009), Commonwealth v. Moore, 980 A.2d 647 (Pa. Super. 2009),
Commonwealth v. Morales, 601 A.2d 1263 (Pa. Super. 1992) ..................................... 4:43 Commonwealth v. Morales, 601 A.2d 1263 (Pa. Super. 1992) ..................................... 4:43
R-25 R-25
Commonwealth v. Moran, 823 A.2d 923 (Pa. Super. 2003) ......................................... 10:15 Commonwealth v. Moran, 823 A.2d 923 (Pa. Super. 2003) ......................................... 10:15
Commonwealth v. Morgan, 913 A.2d 906 (Pa. Super. 2006) ........................................ 4:28 Commonwealth v. Morgan, 913 A.2d 906 (Pa. Super. 2006) ........................................ 4:28
Commonwealth v. Morningwake, 595 A.2d 158 (Pa. Super. 1991), Commonwealth v. Morningwake, 595 A.2d 158 (Pa. Super. 1991),
Commonwealth v. Morris, 822 A.2d 684 (Pa. 2003) .......................................................... 6:27 Commonwealth v. Morris, 822 A.2d 684 (Pa. 2003) .......................................................... 6:27
Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) ....................................................... 9:52 Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) ....................................................... 9:52
Commonwealth v. Mullins, 905 A.2d 1009 (Pa Super 2006), appeal denied, Commonwealth v. Mullins, 905 A.2d 1009 (Pa Super 2006), appeal denied,
937 A.2d 444 (Pa. 2007) .................................................................................................................. 11:6 937 A.2d 444 (Pa. 2007) .................................................................................................................. 11:6
Commonwealth v. Mumma, 414 A.2d 1026 (Pa. 1980) .................................................... 4:19 Commonwealth v. Mumma, 414 A.2d 1026 (Pa. 1980) .................................................... 4:19
Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013) ............................................ 9:44 Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013) ............................................ 9:44
Commonwealth v. Murray, 83 A.3d 137 (Pa. 2013) .................................... 7:53, 7:57, 7:58 Commonwealth v. Murray, 83 A.3d 137 (Pa. 2013) .................................... 7:53, 7:57, 7:58
Commonwealth v. Mussoline, 240 A.2d 549 (Pa. 1967) ................................................... 8:34 Commonwealth v. Mussoline, 240 A.2d 549 (Pa. 1967) ................................................... 8:34
Commonwealth v. Namack, 663 A.2d 191 (Pa. Super. 1995) ......................................... 5:36 Commonwealth v. Namack, 663 A.2d 191 (Pa. Super. 1995) ......................................... 5:36
Commonwealth v. Nanorta, 742 A.2d 176 (Pa. Super. 1999) ........................................... 4:7 Commonwealth v. Nanorta, 742 A.2d 176 (Pa. Super. 1999) ........................................... 4:7
Commonwealth v. Newman, 633 A.2d 1069 (Pa. 1993) ................................................ 7:108 Commonwealth v. Newman, 633 A.2d 1069 (Pa. 1993) ................................................ 7:108
Commonwealth v. Newton, 875 A.2d 1088 (Pa.Super. 2005), Commonwealth v. Newton, 875 A.2d 1088 (Pa.Super. 2005),
Commonwealth v. Nichols, 692 A.2d 181 (Pa. Super. 1997) ........................................... 2:18 Commonwealth v. Nichols, 692 A.2d 181 (Pa. Super. 1997) ........................................... 2:18
Commonwealth v. Nieves, 582 A.2d 341 (Pa. Super. 1990), Commonwealth v. Nieves, 582 A.2d 341 (Pa. Super. 1990),
Commonwealth v. Nissly, 549 A.2d 918 (Pa. Super. 1988) .............................................. 6:64 Commonwealth v. Nissly, 549 A.2d 918 (Pa. Super. 1988) .............................................. 6:64
Commonwealth v. Nolan, 432 A.2d 616 (Pa. Super. 1981) .............................................. 6:17 Commonwealth v. Nolan, 432 A.2d 616 (Pa. Super. 1981) .............................................. 6:17
Commonwealth v. Nypaver, 69 A.3d 708 (Pa. Super. 2013) ........................................... 7:47 Commonwealth v. Nypaver, 69 A.3d 708 (Pa. Super. 2013) ........................................... 7:47
Commonwealth v. OBrien, 836 A.2d 966 (Pa. Super. 2003), Commonwealth v. OBrien, 836 A.2d 966 (Pa. Super. 2003),
R-26 R-26
Commonwealth v. ODrain, 829 A.2d 316 (Pa. Super. 2003) .............................. 7:32, 7:86 Commonwealth v. ODrain, 829 A.2d 316 (Pa. Super. 2003) .............................. 7:32, 7:86
Commonwealth v. Ohle, 470 A.2d 61 (Pa. 1983) .................................................................. 5:26 Commonwealth v. Ohle, 470 A.2d 61 (Pa. 1983) .................................................................. 5:26
Commonwealth v. Oliver, 946 A.2d 1111 (Pa. Super. 2008) ......................................... 4:28 Commonwealth v. Oliver, 946 A.2d 1111 (Pa. Super. 2008) ......................................... 4:28
Commonwealth v. Orie, 610 Pa. 552, 22 A.3d 1021 (2011) ........................................... 10:4 Commonwealth v. Orie, 610 Pa. 552, 22 A.3d 1021 (2011) ........................................... 10:4
Commonwealth v. OSearo, 352 A.2d 30 (Pa. 1976) ........................................................... 8:18 Commonwealth v. OSearo, 352 A.2d 30 (Pa. 1976) ........................................................... 8:18
Commonwealth v. Otero, 860 A.2d 1052 (Pa. Super. 2004), Commonwealth v. Otero, 860 A.2d 1052 (Pa. Super. 2004),
Commonwealth v. Owens, 649 A.2d 129 (Pa. Super. 1994) ........................................... 7:11 Commonwealth v. Owens, 649 A.2d 129 (Pa. Super. 1994) ........................................... 7:11
Commonwealth v. Owens, 929 A.2d 1187 (Pa. Super. 2007) ...................................... 7:105 Commonwealth v. Owens, 929 A.2d 1187 (Pa. Super. 2007) ...................................... 7:105
Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002) ................................................ 7:46, 7:77 Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002) ................................................ 7:46, 7:77
Commonwealth v. Padillas, 997 A.2d 356 (Pa. Super. 2010), Commonwealth v. Padillas, 997 A.2d 356 (Pa. Super. 2010),
Commonwealth v. Pagan, 864 A.2d 1231 (Pa. Super. 2004) ...................................... 10:31 Commonwealth v. Pagan, 864 A.2d 1231 (Pa. Super. 2004) ...................................... 10:31
Commonwealth v. Page, 965 A.2d 1212 (Pa. Super. 2012) ............................................. 7:34 Commonwealth v. Page, 965 A.2d 1212 (Pa. Super. 2012) ............................................. 7:34
80 A.3d 776 (Pa. 2013) ......................................................................... 5:46, 7:90, 7:14, 8:8, 8:15 80 A.3d 776 (Pa. 2013) ......................................................................... 5:46, 7:90, 7:14, 8:8, 8:15
Commonwealth v. Pahel, 689 A.2d 963 (Pa. Super. 1997) ............................................. 4:14 Commonwealth v. Pahel, 689 A.2d 963 (Pa. Super. 1997) ............................................. 4:14
Commonwealth v. Palmer, 700 A.2d 988 (Pa. Super. 1997), Commonwealth v. Palmer, 700 A.2d 988 (Pa. Super. 1997),
appeal denied, 716 A.2d 1248 (Pa. 1998) ................................................................. 7:104, 7:105 appeal denied, 716 A.2d 1248 (Pa. 1998) ................................................................. 7:104, 7:105
Commonwealth v. Pankraz, 554 A.2d 974 (Pa. Super. 1989) ...................................... 4:19 Commonwealth v. Pankraz, 554 A.2d 974 (Pa. Super. 1989) ...................................... 4:19
Commonwealth v. Parker, 431 A.2d 216 (Pa. 1981) .......................................................... 7:76 Commonwealth v. Parker, 431 A.2d 216 (Pa. 1981) .......................................................... 7:76
Commonwealth v. Parmar, 672 A.2d 314 (Pa. Super. 1996) ......................................... 6:42 Commonwealth v. Parmar, 672 A.2d 314 (Pa. Super. 1996) ......................................... 6:42
Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014) ................ 11:25, 11:42, 11:43 Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014) ................ 11:25, 11:42, 11:43
Commonwealth v. Pasley, 743 A.2d 521 (Pa. Super. 1999), appeal denied, Commonwealth v. Pasley, 743 A.2d 521 (Pa. Super. 1999), appeal denied,
759 A.2d 922 (Pa. 2000) .............................................................................................. 1:5, 3:27, 7:39 759 A.2d 922 (Pa. 2000) .............................................................................................. 1:5, 3:27, 7:39
Commonwealth v. Passarelli, 789 A.2d 708 (Pa. Super. 2001) ..................................... 4:15 Commonwealth v. Passarelli, 789 A.2d 708 (Pa. Super. 2001) ..................................... 4:15
R-27 R-27
Commonwealth v. Pate, 617 A.2d 754 (Pa. Super. 1992), appeal denied, Commonwealth v. Pate, 617 A.2d 754 (Pa. Super. 1992), appeal denied,
535 Pa. 656, 634 A.2d 219 (1993) ............................................................................................ 10:18 535 Pa. 656, 634 A.2d 219 (1993) ............................................................................................ 10:18
Commonwealth v. Patosky, 656 A.2d 499 (Pa.Super. 1995) .......................................... 7:39 Commonwealth v. Patosky, 656 A.2d 499 (Pa.Super. 1995) .......................................... 7:39
Commonwealth v. Peer, 684 A.2d 1077 (Pa. Super. 1996) .......................................... 7:104 Commonwealth v. Peer, 684 A.2d 1077 (Pa. Super. 1996) .......................................... 7:104
Commonwealth v. Pena, 31 A.3d 704 (Pa. Super. 2011) ...................................... 5:46, 7:14 Commonwealth v. Pena, 31 A.3d 704 (Pa. Super. 2011) ...................................... 5:46, 7:14
Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014) ............................................ 11:24 Commonwealth v. Perez, 97 A.3d 747 (Pa. Super. 2014) ............................................ 11:24
Commonwealth v. Perry, 588 A.2d 917 (Pa. Super. 1991), Commonwealth v. Perry, 588 A.2d 917 (Pa. Super. 1991),
Commonwealth v. Perry, 657 A.2d 989 (Pa. Super. 1995) ............................................... 7:7 Commonwealth v. Perry, 657 A.2d 989 (Pa. Super. 1995) ............................................... 7:7
Commonwealth v. Peterkin, 513 A.2d 373 (Pa. 1986), cert. denied, Commonwealth v. Peterkin, 513 A.2d 373 (Pa. 1986), cert. denied,
479 U.S. 1070 (Pa. 1987) .................................................................................................................. 7:43 479 U.S. 1070 (Pa. 1987) .................................................................................................................. 7:43
Commonwealth v. Petrino, 480 A.2d 1160 (Pa. Super. 1984) ........................................ 6:51 Commonwealth v. Petrino, 480 A.2d 1160 (Pa. Super. 1984) ........................................ 6:51
Commonwealth v. Pettiford, 402 A.2d 532 (Pa. Super. 1979) ............................ 7:35, 7:60 Commonwealth v. Pettiford, 402 A.2d 532 (Pa. Super. 1979) ............................ 7:35, 7:60
Commonwealth v. Phelps, 301 A.2d 678 (Pa. 1973) ............................................... 9:13, 9:60 Commonwealth v. Phelps, 301 A.2d 678 (Pa. 1973) ............................................... 9:13, 9:60
Commonwealth v. Phillipp, 709 A.2d 920 (Pa. Super. 1998) ........................................ 9:55 Commonwealth v. Phillipp, 709 A.2d 920 (Pa. Super. 1998) ........................................ 9:55
Commonwealth v. Phillips, 410 A.2d 832 (Pa. Super. 1979) ................................... 2:18-19 Commonwealth v. Phillips, 410 A.2d 832 (Pa. Super. 1979) ................................... 2:18-19
Commonwealth v. Pickford, 536 A.2d 1348 (Pa. Super. 1987), appeal dismissed, Commonwealth v. Pickford, 536 A.2d 1348 (Pa. Super. 1987), appeal dismissed,
564 A.2d 158 (Pa. 1989) ................................................................................................. 3:10-11, 8:20 564 A.2d 158 (Pa. 1989) ................................................................................................. 3:10-11, 8:20
Commonwealth v. Piole, 636 A.2d 1143 (Pa. Super. 1994) ............................................. 6:30 Commonwealth v. Piole, 636 A.2d 1143 (Pa. Super. 1994) ............................................. 6:30
Commonwealth v. Plant, 478 A.2d 872 (Pa. Super. 1984) ............................................... 5:34 Commonwealth v. Plant, 478 A.2d 872 (Pa. Super. 1984) ............................................... 5:34
Commonwealth v. Plucinski, 868 A.2d 20 (Pa. Super. 2005) .................. 9:22, 9:23, 9:27 Commonwealth v. Plucinski, 868 A.2d 20 (Pa. Super. 2005) .................. 9:22, 9:23, 9:27
Commonwealth v. Poindexter, 646 A.2d 1211 (Pa. Super. 1994), Commonwealth v. Poindexter, 646 A.2d 1211 (Pa. Super. 1994),
appeal denied, 655 A.2d 512 (Pa. 1995) .................................................................2:20, 2:21, 5:6 appeal denied, 655 A.2d 512 (Pa. 1995) .................................................................2:20, 2:21, 5:6
Commonwealth v. Popow, 844 A.2d 13 (Pa. Super. 2004) ............................................. 4:15 Commonwealth v. Popow, 844 A.2d 13 (Pa. Super. 2004) ............................................. 4:15
Commonwealth v. Porter, 323 A.2d 128 (Pa. Super. 1974) ............................................ 8:34 Commonwealth v. Porter, 323 A.2d 128 (Pa. Super. 1974) ............................................ 8:34
Commonwealth v. Pounds, 417 A.2d 597 (Pa. 1980) ............................................................ 5:8 Commonwealth v. Pounds, 417 A.2d 597 (Pa. 1980) ............................................................ 5:8
R-28 R-28
Commonwealth v. Preston, 904 A.2d 1 (Pa. Super. 2006), appeal denied, Commonwealth v. Preston, 904 A.2d 1 (Pa. Super. 2006), appeal denied,
916 A.2d 632 (Pa. 2007) .............................................................................................................. 10:19 916 A.2d 632 (Pa. 2007) .............................................................................................................. 10:19
Commonwealth v. Price, 616 A.2d 681 (Pa. Super. 1992) ............................................... 3:12 Commonwealth v. Price, 616 A.2d 681 (Pa. Super. 1992) ............................................... 3:12
Commonwealth v. Price, 876 A.2d 988 (Pa. Super. 2005), appeal denied, Commonwealth v. Price, 876 A.2d 988 (Pa. Super. 2005), appeal denied,
897 A.2d 1184 (Pa. 2006), cert. denied, 549 U.S. 902 (2006) ......................................... 9:23 897 A.2d 1184 (Pa. 2006), cert. denied, 549 U.S. 902 (2006) ......................................... 9:23
Commonwealth v. Pries, 861 A.2d 951 (Pa. Super. 2004), appeal denied, Commonwealth v. Pries, 861 A.2d 951 (Pa. Super. 2004), appeal denied,
882 A.2d 478 (Pa. 2005) ............................................................................................................... 10:20 882 A.2d 478 (Pa. 2005) ............................................................................................................... 10:20
Commonwealth v. Priest, 18 A.3d 1235 (Pa. Super. 2011) ........................................ 10:25 Commonwealth v. Priest, 18 A.3d 1235 (Pa. Super. 2011) ........................................ 10:25
Commonwealth v. Prince, 719 A.2d 1086 (Pa. Super. 1998) ............................... 5:14, 7:35 Commonwealth v. Prince, 719 A.2d 1086 (Pa. Super. 1998) ............................... 5:14, 7:35
Commonwealth v. Prisk, 744 A.2d 294 (Pa. Super. 1999) .................................................. 5:7 Commonwealth v. Prisk, 744 A.2d 294 (Pa. Super. 1999) .................................................. 5:7
Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001), affd, Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001), affd,
575 Pa. 511, 837 A.2d 1163 (2003) ......................................................................................... 10:19 575 Pa. 511, 837 A.2d 1163 (2003) ......................................................................................... 10:19
Commonwealth v. Pronkoskie, 383 A.2d 858 (Pa. 1978) ................................................ 7:53 Commonwealth v. Pronkoskie, 383 A.2d 858 (Pa. 1978) ................................................ 7:53
Commonwealth v. Puksar, 951 A.2d 267, 281 (Pa. 2008) ................................................ 7:43 Commonwealth v. Puksar, 951 A.2d 267, 281 (Pa. 2008) ................................................ 7:43
Commonwealth v. Rabold, 951 A.2d 329 (Pa. 2008) ......................................................... 5:27 Commonwealth v. Rabold, 951 A.2d 329 (Pa. 2008) ......................................................... 5:27
Commonwealth v. Ramer, 30 Pa. D.&C.3d 50 (1984) ........................................................ 6:41 Commonwealth v. Ramer, 30 Pa. D.&C.3d 50 (1984) ........................................................ 6:41
Commonwealth v. Ramstedt, 173 A. 772 (Pa. Super. 1934) ........................................... 5:26 Commonwealth v. Ramstedt, 173 A. 772 (Pa. Super. 1934) ........................................... 5:26
Commonwealth v. Randall, 133 A.2d 276 (Pa. Super. 1957) ......................................... 4:19 Commonwealth v. Randall, 133 A.2d 276 (Pa. Super. 1957) ......................................... 4:19
Commonwealth v. Randall, 758 A.2d 669 (Pa. Super. 2000), Commonwealth v. Randall, 758 A.2d 669 (Pa. Super. 2000),
Commonwealth v. Randolph, 718 A.2d 1242 (Pa. 1998) ................................................. 5:12 Commonwealth v. Randolph, 718 A.2d 1242 (Pa. 1998) ................................................. 5:12
Commonwealth v. Reed, 644 A.2d 1223 (Pa. Super. 1994) .................................. 6:53, 6:62 Commonwealth v. Reed, 644 A.2d 1223 (Pa. Super. 1994) .................................. 6:53, 6:62
Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) ...................... 7:41, 10:20 Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) ...................... 7:41, 10:20
Commonwealth v. Reid, 811 A.2d 530 (Pa. 2002), cert. denied, Commonwealth v. Reid, 811 A.2d 530 (Pa. 2002), cert. denied,
540 U.S. 850 (2003) ............................................................................... 7:42, 7:43, 7:46, 7:47, 7:98 540 U.S. 850 (2003) ............................................................................... 7:42, 7:43, 7:46, 7:47, 7:98
Commonwealth v. Reilly, 549 A.2d 503 (Pa. 1988) ................................................. 5:29, 5:30 Commonwealth v. Reilly, 549 A.2d 503 (Pa. 1988) ................................................. 5:29, 5:30
R-29 R-29
Commonwealth v. Ressler, 798 A.2d 221 (Pa. Super. 2002) .......................................... 4:15 Commonwealth v. Ressler, 798 A.2d 221 (Pa. Super. 2002) .......................................... 4:15
Commonwealth v. Retkosfsky, 860 A.2d 1098 (Pa. Super. 2004) ................................ 4:11 Commonwealth v. Retkosfsky, 860 A.2d 1098 (Pa. Super. 2004) ................................ 4:11
Commonwealth v. Rhodes, 510 A.2d 1217 Commonwealth v. Rhodes, 510 A.2d 1217
(Pa. 1986) ......................................2:12, 2:13, 2:15, 3:9, 3:10, 3:11, 3:12, 3:22-23, 5:16, 7:38 (Pa. 1986) ......................................2:12, 2:13, 2:15, 3:9, 3:10, 3:11, 3:12, 3:22-23, 5:16, 7:38
Commonwealth v. Rhodes, 990 A.2d 732, (Pa. Super. 2009), appeal denied, Commonwealth v. Rhodes, 990 A.2d 732, (Pa. Super. 2009), appeal denied,
14 A.3d 827 (Pa. 2010) ......................................................................................................................... 9:8 14 A.3d 827 (Pa. 2010) ......................................................................................................................... 9:8
Commonwealth v. Ricco, 650 A.2d 1084 (Pa. Super. 1994) ................................. 2:17, 3:37 Commonwealth v. Ricco, 650 A.2d 1084 (Pa. Super. 1994) ................................. 2:17, 3:37
Commonwealth v. Richter, 676 A.2d 1232 (Pa. Super. 1996), Commonwealth v. Richter, 676 A.2d 1232 (Pa. Super. 1996),
affd, 711 A.2d 464 (Pa. 1998) ...................................................................................... 2:13-14, 7:44 affd, 711 A.2d 464 (Pa. 1998) ...................................................................................... 2:13-14, 7:44
Commonwealth v. Riley, 643 A.2d 1090 (Pa. Super. 1994) ............................................. 2:14 Commonwealth v. Riley, 643 A.2d 1090 (Pa. Super. 1994) ............................................. 2:14
Commonwealth v. Rios, 920 A.2d 790 (Pa. 2007) .................................................................. 5:6 Commonwealth v. Rios, 920 A.2d 790 (Pa. 2007) .................................................................. 5:6
Commonwealth v. Ritchie, 472 A.2d 220 (Pa. Super. 1984), Commonwealth v. Ritchie, 472 A.2d 220 (Pa. Super. 1984),
remanded on other grounds, 502 A.2d 148 (Pa. 1985) ........................................................ 3:41 remanded on other grounds, 502 A.2d 148 (Pa. 1985) ........................................................ 3:41
Commonwealth v. Robertson, 874 A.2d 1200 (Pa. Super. 2005) ...................... 9:28, 9:30 Commonwealth v. Robertson, 874 A.2d 1200 (Pa. Super. 2005) ...................... 9:28, 9:30
Commonwealth v. Robertson-Dewar, 829 A.2d 1207 (Pa. Super. 2003) ................ 4:26 Commonwealth v. Robertson-Dewar, 829 A.2d 1207 (Pa. Super. 2003) ................ 4:26
Commonwealth v. Robinson, 399 A.2d 1084 (Pa. Super. 1979), affd, 438 A.2d Commonwealth v. Robinson, 399 A.2d 1084 (Pa. Super. 1979), affd, 438 A.2d
964 (Pa. 1981), appeal dismissed, 457 U.S.1101 (1982) ............................. 3:20, 5:38, 5:39 964 (Pa. 1981), appeal dismissed, 457 U.S.1101 (1982) ............................. 3:20, 5:38, 5:39
Commonwealth v. Robinson, 438 A.2d 964 (Pa. 1981), Commonwealth v. Robinson, 438 A.2d 964 (Pa. 1981),
appeal dismissed, 457 U.S. 1101 (1982) ..................................................................................... 7:93 appeal dismissed, 457 U.S. 1101 (1982) ..................................................................................... 7:93
Commonwealth v. Robinson, 864 A.2d 460 (Pa. 2004), Commonwealth v. Robinson, 864 A.2d 460 (Pa. 2004),
cert. denied, 546 U.S. 983 (2005) ..................................................... 7:44, 7:92, 7:93, 7:96, 8:25 cert. denied, 546 U.S. 983 (2005) ..................................................... 7:44, 7:92, 7:93, 7:96, 8:25
Commonwealth v. Robinson, 5 A.3d 339 (2010), appeal denied, Commonwealth v. Robinson, 5 A.3d 339 (2010), appeal denied,
19 A.3d 1051(Pa. 2011) ......................................................................................................... 3:10, 8:20 19 A.3d 1051(Pa. 2011) ......................................................................................................... 3:10, 8:20
Commonwealth v. Robinson, 82 A.3d 998 (Pa. 2013) .................................................. 10:28 Commonwealth v. Robinson, 82 A.3d 998 (Pa. 2013) .................................................. 10:28
Commonwealth v. Rodda, 723 A.2d 212 (Pa. Super. 1999) ............................................ 9:53 Commonwealth v. Rodda, 723 A.2d 212 (Pa. Super. 1999) ............................................ 9:53
Commonwealth v. Rodriquez, 495 A.2d 569 (Pa. Super. 1985) ..................................... 7:37 Commonwealth v. Rodriquez, 495 A.2d 569 (Pa. Super. 1985) ..................................... 7:37
Commonwealth v. Rosario, 648 A.2d 1172 (Pa. 1994) .................................................... 10:4 Commonwealth v. Rosario, 648 A.2d 1172 (Pa. 1994) .................................................... 10:4
R-30 R-30
Commonwealth v. Rose, 321 A.2d 880 (Pa. 1974) .................................................................. 5:9 Commonwealth v. Rose, 321 A.2d 880 (Pa. 1974) .................................................................. 5:9
Commonwealth v. Rose, 960 A.2d 149 (Pa. Super. 2008) ................................................ 4:28 Commonwealth v. Rose, 960 A.2d 149 (Pa. Super. 2008) ................................................ 4:28
Commonwealth v. Ross, 57 A.3d 85, (Pa. Super. 2012) ...................................................... 7:45 Commonwealth v. Ross, 57 A.3d 85, (Pa. Super. 2012) ...................................................... 7:45
Commonwealth v. Rough, 418 A.2d 605 (Pa. Super. 1980) ............................................ 5:14 Commonwealth v. Rough, 418 A.2d 605 (Pa. Super. 1980) ............................................ 5:14
Commonwealth v. Roxberry, 602 A.2d 826 (Pa. 1992) ............................................... 5:5, 5:9 Commonwealth v. Roxberry, 602 A.2d 826 (Pa. 1992) ............................................... 5:5, 5:9
Commonwealth v. Ruggiano, 26 A.3d 473 (Pa. 2011) ...................................................... 6:47 Commonwealth v. Ruggiano, 26 A.3d 473 (Pa. 2011) ...................................................... 6:47
Commonwealth v. Rumsey, 454 A.2d 1121 (Pa. Super. 1983) ....................................... 5:34 Commonwealth v. Rumsey, 454 A.2d 1121 (Pa. Super. 1983) ....................................... 5:34
Commonwealth v. Ruppert, 579 A.2d 966 (Pa. Super. 1990), Commonwealth v. Ruppert, 579 A.2d 966 (Pa. Super. 1990),
Commonwealth v. Russell, 938 A.2d 1082 (Pa. Super. 2007), Commonwealth v. Russell, 938 A.2d 1082 (Pa. Super. 2007),
Commonwealth v. Sampolski, 89 A.3d 1287 (Pa. Super. 2014) ............................... 11:18 Commonwealth v. Sampolski, 89 A.3d 1287 (Pa. Super. 2014) ............................... 11:18
Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 2011) ....................................................... 10:23 Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 2011) ....................................................... 10:23
Commonwealth v. Sanders, 814 A.2d 1248 (Pa. Super. 2003), Commonwealth v. Sanders, 814 A.2d 1248 (Pa. Super. 2003),
Commonwealth v. Sandusky, 77 A.3d 663 (Pa. Super. 2013), Commonwealth v. Sandusky, 77 A.3d 663 (Pa. Super. 2013),
appeal denied, 81 A.2d 77 (Pa. 2013) .............................................................. 1:13, 7:35, 10:26 appeal denied, 81 A.2d 77 (Pa. 2013) .............................................................. 1:13, 7:35, 10:26
Commonwealth v. Santiago, 822 A.2d 716 (Pa. Super. 2003), appeal denied, Commonwealth v. Santiago, 822 A.2d 716 (Pa. Super. 2003), appeal denied,
843 A.2d 1237 (Pa. 2004), cert. denied, 542 U.S. 942 (2004) ................................ 7:49, 7:77 843 A.2d 1237 (Pa. 2004), cert. denied, 542 U.S. 942 (2004) ................................ 7:49, 7:77
Commonwealth v. Santiago, 855 A.2d 682 (Pa. 2004) .................................................... 7:87 Commonwealth v. Santiago, 855 A.2d 682 (Pa. 2004) .................................................... 7:87
Commonwealth v. Sartin, 708 A.2d 121 (Pa. Super. 1998) ............................... 10:3, 10:10 Commonwealth v. Sartin, 708 A.2d 121 (Pa. Super. 1998) ............................... 10:3, 10:10
Commonwealth v. Saunders, 602 A.2d 816 (Pa. 1992) ............................... 5:8, 5:9, 10:25 Commonwealth v. Saunders, 602 A.2d 816 (Pa. 1992) ............................... 5:8, 5:9, 10:25
Commonwealth v. Scarborough, 64 A.3d 602 (Pa. 2013) .............................................. 8:31 Commonwealth v. Scarborough, 64 A.3d 602 (Pa. 2013) .............................................. 8:31
Commonwealth v. Scher, 803 A.2d 1204, 1222 (2002), Commonwealth v. Scher, 803 A.2d 1204, 1222 (2002),
Commonwealth v. Schoff, 911 A.2d 147, 156 (Pa. Super. 2006) .........................7:64, 7:65 Commonwealth v. Schoff, 911 A.2d 147, 156 (Pa. Super. 2006) .........................7:64, 7:65
R-31 R-31
Commonwealth v. Scott, 578 A.2d 933 (Pa. Super. 1990), appeal denied, Commonwealth v. Scott, 578 A.2d 933 (Pa. Super. 1990), appeal denied,
528 Pa. 629, 598 A.2d 283 (1991) ............................................................................................... 10:3 528 Pa. 629, 598 A.2d 283 (1991) ............................................................................................... 10:3
Commonwealth v. Scott, 73 A.3d 599 (Pa. Super. 2013) .................................................. 5:36 Commonwealth v. Scott, 73 A.3d 599 (Pa. Super. 2013) .................................................. 5:36
Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986) .......................................... 8:14 Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986) .......................................... 8:14
Commonwealth v. Seese, 319 MDA 2013 (Pa. Super. 2014) ...................................... 11:27 Commonwealth v. Seese, 319 MDA 2013 (Pa. Super. 2014) ...................................... 11:27
Commonwealth v. Seigrist, 385 A.2d 405 (Pa. Super. 1978) .......................................... 8:16 Commonwealth v. Seigrist, 385 A.2d 405 (Pa. Super. 1978) .......................................... 8:16
Commonwealth v. Selenski, 18 A.3d 1229 (Pa. Super. 2011) ............................................ 8:3 Commonwealth v. Selenski, 18 A.3d 1229 (Pa. Super. 2011) ............................................ 8:3
Commonwealth v. Serge, 896 A.2d 1170 (Pa. 2006) .......................................................... 8:13 Commonwealth v. Serge, 896 A.2d 1170 (Pa. 2006) .......................................................... 8:13
Commonwealth v. Seville, 405 A.2d 1262, 1264 (Pa. Super. 1979) .............................. 7:66 Commonwealth v. Seville, 405 A.2d 1262, 1264 (Pa. Super. 1979) .............................. 7:66
Commonwealth v. Shaffer, 734 A.2d 840 (Pa. 1999) ......................................................... 5:12 Commonwealth v. Shaffer, 734 A.2d 840 (Pa. 1999) ......................................................... 5:12
Commonwealth v. Shaffer, 763 A.2d 411 (Pa. Super. 2000) .................... 3:27, 3:31, 3:37 Commonwealth v. Shaffer, 763 A.2d 411 (Pa. Super. 2000) .................... 3:27, 3:31, 3:37
Commonwealth v. Shannon, 608 A.2d 1020 (Pa. 1992) ................................................... 3:26 Commonwealth v. Shannon, 608 A.2d 1020 (Pa. 1992) ................................................... 3:26
Commonwealth v. Shearer, 882 A.2d 462 (Pa. 2005) ......................................... 10:7, 10:11 Commonwealth v. Shearer, 882 A.2d 462 (Pa. 2005) ......................................... 10:7, 10:11
Commonwealth v. Shelton, 640 A.2d 892 (Pa. 1994) ........................................................ 6:34 Commonwealth v. Shelton, 640 A.2d 892 (Pa. 1994) ........................................................ 6:34
Commonwealth v. Sherlock, 473 A.2d 629 (Pa. Super. 1984) ........................................... 5:4 Commonwealth v. Sherlock, 473 A.2d 629 (Pa. Super. 1984) ........................................... 5:4
Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009), cert. denied, Commonwealth v. Sherwood, 982 A.2d 483 (Pa. 2009), cert. denied,
559 U.S. 1111 (2010) ...............................................................................................................7:41, 7:58 559 U.S. 1111 (2010) ...............................................................................................................7:41, 7:58
Commonwealth v. Shoemaker, 313 A.2d 342 (Pa. Super. 1973), Commonwealth v. Shoemaker, 313 A.2d 342 (Pa. Super. 1973),
affd, 341 A.2d 111 (Pa. 1975) ........................................................................................................ 9:10 affd, 341 A.2d 111 (Pa. 1975) ........................................................................................................ 9:10
Commonwealth v. Shoop, 617 A.2d 351 (Pa. Super. 1992) ............................................ 10:6 Commonwealth v. Shoop, 617 A.2d 351 (Pa. Super. 1992) ............................................ 10:6
Commonwealth v. Short, 420 A.2d 694 (Pa. Super. 1980) ............................................... 7:91 Commonwealth v. Short, 420 A.2d 694 (Pa. Super. 1980) ............................................... 7:91
Commonwealth v. Sileo, 32 A.3d 753 (Pa. Super. 2011), Commonwealth v. Sileo, 32 A.3d 753 (Pa. Super. 2011),
appeal denied, 42 A.3d 1060 (Pa. 2012) ................................................................ 5:5, 5:11, 5:12 appeal denied, 42 A.3d 1060 (Pa. 2012) ................................................................ 5:5, 5:11, 5:12
Commonwealth v. Simmons, 662 A.2d 621 (Pa. 1995), Commonwealth v. Simmons, 662 A.2d 621 (Pa. 1995),
cert. denied, 516 U.S. 1128 (1996) ..................................................................................... 6:33, 7:69 cert. denied, 516 U.S. 1128 (1996) ..................................................................................... 6:33, 7:69
R-32 R-32
Commonwealth v. Simpson, 66 A.3d 253 (Pa. 2013) ......................................................... 6:26 Commonwealth v. Simpson, 66 A.3d 253 (Pa. 2013) ......................................................... 6:26
Commonwealth v. Singley, 868 A.2d 403 (Pa. 2005), Commonwealth v. Singley, 868 A.2d 403 (Pa. 2005),
Commonwealth v. Sloan, 907 A.2d 460 (Pa. 2006) ................................ 6:6, 6:7, 6:10, 6:11 Commonwealth v. Sloan, 907 A.2d 460 (Pa. 2006) ................................ 6:6, 6:7, 6:10, 6:11
Commonwealth v. Smith, 416 A.2d 986 (Pa. 1980) ............................................................ 7:47 Commonwealth v. Smith, 416 A.2d 986 (Pa. 1980) ............................................................ 7:47
Commonwealth v. Smith, 421 A.2d 693 ((Pa. Super. 1980) ..................................7:11, 7:12 Commonwealth v. Smith, 421 A.2d 693 ((Pa. Super. 1980) ..................................7:11, 7:12
Commonwealth v. Smith, 544 A.2d 943 (Pa. 1988) ................................................. 10:4, 10:5 Commonwealth v. Smith, 544 A.2d 943 (Pa. 1988) ................................................. 10:4, 10:5
Commonwealth v. Smith, 552 A.2d 1053 (Pa. Super. 1988), Commonwealth v. Smith, 552 A.2d 1053 (Pa. Super. 1988),
appeal denied, 575 A.2d 112 (Pa. 1990) ..................................................................................... 7:78 appeal denied, 575 A.2d 112 (Pa. 1990) ..................................................................................... 7:78
Commonwealth v. Smith, 599 A.2d 1350 (Pa. Super. 1991) ........................................... 6:29 Commonwealth v. Smith, 599 A.2d 1350 (Pa. Super. 1991) ........................................... 6:29
Commonwealth v. Smith, 606 A.2d 939 (Pa. Super. 1992) ................................... 6:52, 6:53 Commonwealth v. Smith, 606 A.2d 939 (Pa. Super. 1992) ................................... 6:52, 6:53
Commonwealth v. Smith, 635 A.2d 1086 (Pa. Super. 1993) ........................................... 7:50 Commonwealth v. Smith, 635 A.2d 1086 (Pa. Super. 1993) ........................................... 7:50
Commonwealth v. Smith, 681 A.2d 1288 (Pa. 1996) ...............................................7:62, 7:63 Commonwealth v. Smith, 681 A.2d 1288 (Pa. 1996) ...............................................7:62, 7:63
Commonwealth v. Smith, Commonwealth v. Smith,

863 A.2d 1172 (Pa. Super. 2004) ........................................................1:5; 2:15, 3:27, 4:18, 7:37 863 A.2d 1172 (Pa. Super. 2004) ........................................................1:5; 2:15, 3:27, 4:18, 7:37
Commonwealth v. Smith, 889 A.2d 582 (Pa. Super. 2005), appeal denied, Commonwealth v. Smith, 889 A.2d 582 (Pa. Super. 2005), appeal denied,
905 A.2d 500 (Pa. 2006) ................................................................................................................... 8:31 905 A.2d 500 (Pa. 2006) ................................................................................................................... 8:31
Commonwealth v. Smith, 17 A.3d 873 (Pa. 2011), Commonwealth v. Smith, 17 A.3d 873 (Pa. 2011),
cert. denied, 133 S.Ct. 24 (2012) ....................................................................................................... 5:9 cert. denied, 133 S.Ct. 24 (2012) ....................................................................................................... 5:9
Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013) ............................................................ 10:20 Commonwealth v. Smith, 77 A.3d 562 (Pa. 2013) ............................................................ 10:20
Commonwealth v. Smith, 85 A.3d 530 (Pa. Super. 2014) ............................................ 10:20 Commonwealth v. Smith, 85 A.3d 530 (Pa. Super. 2014) ............................................ 10:20
Commonwealth v. Smolko, 666 A.2d 672 (Pa. Super. 1995) .................................. 3:9, 3:21 Commonwealth v. Smolko, 666 A.2d 672 (Pa. Super. 1995) .................................. 3:9, 3:21
Commonwealth v. Smoyer, 476 A.2d 1304 (Pa. 1984) ........................................... 7:91, 7:92 Commonwealth v. Smoyer, 476 A.2d 1304 (Pa. 1984) ........................................... 7:91, 7:92
R-33 R-33
Commonwealth v. Sneeringer, 668 A.2d 1167 (Pa. Super. 1995), Commonwealth v. Sneeringer, 668 A.2d 1167 (Pa. Super. 1995),
Commonwealth v. Snell, 737 A.2d 1232 (Pa. Super. 1999) ............................................. 6:23 Commonwealth v. Snell, 737 A.2d 1232 (Pa. Super. 1999) ............................................. 6:23
Commonwealth v. Snoke, 580 A.2d 295 (Pa. 1989) .......................................... 2:7, 2:8, 7:37 Commonwealth v. Snoke, 580 A.2d 295 (Pa. 1989) .......................................... 2:7, 2:8, 7:37
Commonwealth v. Snyder, 80 A.2d 336 (Pa. Super. 2005) .............................................. 6:39 Commonwealth v. Snyder, 80 A.2d 336 (Pa. Super. 2005) .............................................. 6:39
Commonwealth v. Sohmer, 546 A.2d 601 (Pa. 1988) ............................................. 5:31, 5:32 Commonwealth v. Sohmer, 546 A.2d 601 (Pa. 1988) ............................................. 5:31, 5:32
Commonwealth v. Spetzer, 813 A.2d 707 (Pa. 2002) ....................................... 7:108, 7:109 Commonwealth v. Spetzer, 813 A.2d 707 (Pa. 2002) ....................................... 7:108, 7:109
Commonwealth v. Spiewak, 617 A.2d 696 (Pa. 1992) ....................................................... 5:21 Commonwealth v. Spiewak, 617 A.2d 696 (Pa. 1992) ....................................................... 5:21
Commonwealth v. Spotz, 716 A.2d 580 (Pa. 1998), Commonwealth v. Spotz, 716 A.2d 580 (Pa. 1998),
cert. denied, 526 U.S. 1070 (1999) ..................................................................................... 7:41, 7:51 cert. denied, 526 U.S. 1070 (1999) ..................................................................................... 7:41, 7:51
Commonwealth v. Spotz, 756 A.2d 1139 (Pa. 2000), cert. denied, Commonwealth v. Spotz, 756 A.2d 1139 (Pa. 2000), cert. denied,
532 U.S. 932 (2001) ........................................................................................................................... 7:51 532 U.S. 932 (2001) ........................................................................................................................... 7:51
Commonwealth v. Spruill, 80 A.3d 453 (Pa. 2013) ......................................................... 10:29 Commonwealth v. Spruill, 80 A.3d 453 (Pa. 2013) ......................................................... 10:29
Commonwealth v. Stallworth, 781 A.2d 110 (Pa. 2001) ........................ 7:48, 7:102, 8:11 Commonwealth v. Stallworth, 781 A.2d 110 (Pa. 2001) ........................ 7:48, 7:102, 8:11
Commonwealth v. Stambaugh, 512 A.2d 1216 (Pa. 1986) .................................. 2:20, 2:21 Commonwealth v. Stambaugh, 512 A.2d 1216 (Pa. 1986) .................................. 2:20, 2:21
Commonwealth v. Stansbury, 640 A.2d 1368 (Pa. Super. 1994) ....................... 6:49, 6:50 Commonwealth v. Stansbury, 640 A.2d 1368 (Pa. Super. 1994) ....................... 6:49, 6:50
Commonwealth v. Staruh, Commonwealth v. Staruh,

2007 WL 4218003 (CCP Cumberland County 2007) ............................................................ 7:80 2007 WL 4218003 (CCP Cumberland County 2007) ............................................................ 7:80
Commonwealth v. Statti, 73 A. 2d 688 (Pa.Super. 1950) ................................................. 8:35 Commonwealth v. Statti, 73 A. 2d 688 (Pa.Super. 1950) ................................................. 8:35
Commonwealth v. Stays, 70 A.3d 1256, 1263-1264 (Pa.Super. 2013) .............7:74, 7:75 Commonwealth v. Stays, 70 A.3d 1256, 1263-1264 (Pa.Super. 2013) .............7:74, 7:75
Commonwealth v. Stephens, 74 A.3d 1034 (Pa. Super. 2013) ....................................... 9:25 Commonwealth v. Stephens, 74 A.3d 1034 (Pa. Super. 2013) ....................................... 9:25
Commonwealth v. Stevens, 352 A.2d 509, 514 (Pa. Super. 1975) ................................. 7:13 Commonwealth v. Stevens, 352 A.2d 509, 514 (Pa. Super. 1975) ................................. 7:13
Commonwealth v. Stevenson, 850 A.2d 1268 (Pa. Super. 2004) .............................. 10:29 Commonwealth v. Stevenson, 850 A.2d 1268 (Pa. Super. 2004) .............................. 10:29
Commonwealth v. Stevenson, 64 A.3d 715 (Pa. Super. 2013), Commonwealth v. Stevenson, 64 A.3d 715 (Pa. Super. 2013),
R-34 R-34
Commonwealth v. Stewart, 84 A.3d 701 (Pa. Super. 2013), Commonwealth v. Stewart, 84 A.3d 701 (Pa. Super. 2013),
appeal denied, 93 A.3d 463 (Pa. 2014 ............................................................................................ 5:6 appeal denied, 93 A.3d 463 (Pa. 2014 ............................................................................................ 5:6
Commonwealth v. Stohr, 522 A.2d 589 (Pa. Super. 1987) .................................... 7:31, 7:32 Commonwealth v. Stohr, 522 A.2d 589 (Pa. Super. 1987) .................................... 7:31, 7:32
Commonwealth v. Stokes, 78 A.3d 644 (Pa. Super. 2013) .......................................... 10:24 Commonwealth v. Stokes, 78 A.3d 644 (Pa. Super. 2013) .......................................... 10:24
Commonwealth v. Strong, 825 A.2d 658 (Pa. Super. 200), appeal denied, Commonwealth v. Strong, 825 A.2d 658 (Pa. Super. 200), appeal denied,
847 A.2d 59 (Pa. 2003), cert. denied, 544 U.S. 927 (2005) ................................................ 7:50 847 A.2d 59 (Pa. 2003), cert. denied, 544 U.S. 927 (2005) ................................................ 7:50
Commonwealth v. Strouse, 909 A.2d 368 (Pa. Super. 1994) ............................................. 4:7 Commonwealth v. Strouse, 909 A.2d 368 (Pa. Super. 1994) ............................................. 4:7
Commonwealth v. Sullivan, 829 A.2d 795 (Pa. Super. 2003) ......................................... 6:33 Commonwealth v. Sullivan, 829 A.2d 795 (Pa. Super. 2003) ......................................... 6:33
Commonwealth v. Swanson, 225 A.2d 231 (Pa. 1967) .................................................... 10:6 Commonwealth v. Swanson, 225 A.2d 231 (Pa. 1967) .................................................... 10:6
Commonwealth v. Swartz, 579 A.2d 978 (Pa. Super. 1990) .......................................... 10:4 Commonwealth v. Swartz, 579 A.2d 978 (Pa. Super. 1990) .......................................... 10:4
Commonwealth v. Swartz, 484 A.2d 793 (Pa. Super. 1984) ........................................... 5:30 Commonwealth v. Swartz, 484 A.2d 793 (Pa. Super. 1984) ........................................... 5:30
Commonwealth v. Szakal, 50 A.3d 210 (Pa. Super. 2012) ............................................... 8:38 Commonwealth v. Szakal, 50 A.3d 210 (Pa. Super. 2012) ............................................... 8:38
Commonwealth v. Tate, 816 A.2d 1097 (Pa. 2003) ............................................................... 4:8 Commonwealth v. Tate, 816 A.2d 1097 (Pa. 2003) ............................................................... 4:8
Commonwealth v. Taylor, 876 A.2d 916 (Pa. 2005) ......................................................... 5:30 Commonwealth v. Taylor, 876 A.2d 916 (Pa. 2005) ......................................................... 5:30
Commonwealth v. Tervalon, 345 A.2d 671 (Pa. 1975) ..................................................... 7:69 Commonwealth v. Tervalon, 345 A.2d 671 (Pa. 1975) ..................................................... 7:69
Commonwealth v. Thiel, 470 A.2d 145 (Pa. Super. 1983) ............................................... 6:29 Commonwealth v. Thiel, 470 A.2d 145 (Pa. Super. 1983) ............................................... 6:29
Commonwealth v. Thiry, 919 A.2d 961 (Pa. Super. 2007), appeal denied, Commonwealth v. Thiry, 919 A.2d 961 (Pa. Super. 2007), appeal denied,
932 A.2d 1288 (Pa. 2007) ................................................................................................................ 3:38 932 A.2d 1288 (Pa. 2007) ................................................................................................................ 3:38
Commonwealth v. Thomas, 282 A.2d 693 (Pa. 1971) ....................................................... 8:13 Commonwealth v. Thomas, 282 A.2d 693 (Pa. 1971) ....................................................... 8:13
Commonwealth v. Thomas, 451 A.2d 470 (Pa. Super. 1982) ..................................... 10:15 Commonwealth v. Thomas, 451 A.2d 470 (Pa. Super. 1982) ..................................... 10:15
Commonwealth v. Thomas, 553 A.2d 918 (Pa. 1989) ...................................................... 9:60 Commonwealth v. Thomas, 553 A.2d 918 (Pa. 1989) ...................................................... 9:60
Commonwealth v. Thomas, 575 A.2d 921 (Pa. Super. 1990) ............................................ 5:8 Commonwealth v. Thomas, 575 A.2d 921 (Pa. Super. 1990) ............................................ 5:8
Commonwealth v. Thomas, 717 A.2d 468 (1998), Commonwealth v. Thomas, 717 A.2d 468 (1998),
cert denied, 528 U.S. 827 (1999) .......................................................................................... 5:9, 5:13 cert denied, 528 U.S. 827 (1999) .......................................................................................... 5:9, 5:13
Commonwealth v. Thomas, Commonwealth v. Thomas,

904 A.2d 964 (Pa. Super. 2006) ............................................................. 2:7-8, 7:36, 7:37, 10:26 904 A.2d 964 (Pa. Super. 2006) ............................................................. 2:7-8, 7:36, 7:37, 10:26
R-35 R-35
Commonwealth v. Thomas, 67 A.3d 838 (Pa. Super. 2013) ............................................ 2:26 Commonwealth v. Thomas, 67 A.3d 838 (Pa. Super. 2013) ............................................ 2:26
Commonwealth v. Thomson, 673 A.2d 357 (Pa. Super. 1996), appeal denied, Commonwealth v. Thomson, 673 A.2d 357 (Pa. Super. 1996), appeal denied,
686 A.2d 1310 (Pa. 1996) ............................................................................................ 1:5, 3:13, 3:24 686 A.2d 1310 (Pa. 1996) ............................................................................................ 1:5, 3:13, 3:24
Commonwealth v. Tiffany, 926 A.2d 503 (Pa. Super. 2007), appeal denied, Commonwealth v. Tiffany, 926 A.2d 503 (Pa. Super. 2007), appeal denied,
948 A.2d 804 (Pa. 2008) .................................................................................................................. 3:38 948 A.2d 804 (Pa. 2008) .................................................................................................................. 3:38
Commonwealth v. Tilley, 780 A.2d 649 (Pa. 2001) ............................................................ 10:9 Commonwealth v. Tilley, 780 A.2d 649 (Pa. 2001) ............................................................ 10:9
Commonwealth v. Timer, 609 A.2d 572 (Pa. Super. 1992) ............................................. 5:26 Commonwealth v. Timer, 609 A.2d 572 (Pa. Super. 1992) ............................................. 5:26
Commonwealth v. Tirado, 870 A.2d 362 (Pa. Super. 2005) ....................................... 10:26 Commonwealth v. Tirado, 870 A.2d 362 (Pa. Super. 2005) ....................................... 10:26
Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977) ................................................ 8:10, 8:11 Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977) ................................................ 8:10, 8:11
Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995), Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995),
cert denied, 516 U.S. 1121 (1996) .................................................................................. 5:30, 7:104 cert denied, 516 U.S. 1121 (1996) .................................................................................. 5:30, 7:104
Commonwealth v. Trimble, 615 A.2d 48 (Pa. Super. 1992), appeal denied, Commonwealth v. Trimble, 615 A.2d 48 (Pa. Super. 1992), appeal denied,
542 A.2d 1365 (Pa. 1988) ................................................................................. 2:11, 2:19-20, 7:11 542 A.2d 1365 (Pa. 1988) ................................................................................. 2:11, 2:19-20, 7:11
Commonwealth v. Trippett, 932 A.2d 188 (Pa. Super. 2007) ............................ 4:9, 7:37 Commonwealth v. Trippett, 932 A.2d 188 (Pa. Super. 2007) ............................ 4:9, 7:37
Commonwealth v. Truesdale, 296 A.2d 829 (Pa. 1972) .......................................... 6:4, 6:10 Commonwealth v. Truesdale, 296 A.2d 829 (Pa. 1972) .......................................... 6:4, 6:10
Commonwealth v. Twitty, 876 A.2d 433 (Pa. Super. 2005), Commonwealth v. Twitty, 876 A.2d 433 (Pa. Super. 2005),
Commonwealth v. Usher, 371 A.2d 995 (Pa. Super. 1977) .............................................. 2:21 Commonwealth v. Usher, 371 A.2d 995 (Pa. Super. 1977) .............................................. 2:21
Commonwealth v. Vidmosko, 574 A.2d 96 (Pa. Super. 1990), appeal denied, Commonwealth v. Vidmosko, 574 A.2d 96 (Pa. Super. 1990), appeal denied,
593 A.2d 418 (Pa. 1991) ................................................................................................................... 8:14 593 A.2d 418 (Pa. 1991) ................................................................................................................... 8:14
Commonwealth v. Viera, 659 A.2d 1024 (Pa. Super. 1995), Commonwealth v. Viera, 659 A.2d 1024 (Pa. Super. 1995),
Commonwealth v. Vining, 744 A.2d 310 (Pa. Super. 1999) ............................................ 4:10 Commonwealth v. Vining, 744 A.2d 310 (Pa. Super. 1999) ............................................ 4:10
Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014) ........................................................... 8:39 Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014) ........................................................... 8:39
Commonwealth v. Wall, 606 A.2d 449 (Pa. Super. 1992) ........................ 6:48, 6:49, 6:50 Commonwealth v. Wall, 606 A.2d 449 (Pa. Super. 1992) ........................ 6:48, 6:49, 6:50
Commonwealth v. Wall, 953 A.2d 581 (Pa. Super. 2008), appeal denied, Commonwealth v. Wall, 953 A.2d 581 (Pa. Super. 2008), appeal denied,
963 A.2d 470 (Pa. 2008) ................................................. 1:6; 2:20, 2:21, 3:12, 3:23, 7:10, 7:11 963 A.2d 470 (Pa. 2008) ................................................. 1:6; 2:20, 2:21, 3:12, 3:23, 7:10, 7:11
R-36 R-36
Commonwealth v. Walls, 993 A.2d 289 (Pa. Super. 2010) .............................................. 5:15 Commonwealth v. Walls, 993 A.2d 289 (Pa. Super. 2010) .............................................. 5:15
Commonwealth v. Wallace, 817 A.2d 485 (Pa. Super. 2002) ....................................... 4:13 Commonwealth v. Wallace, 817 A.2d 485 (Pa. Super. 2002) ....................................... 4:13
Commonwealth v. Walzack, 360 A.2d 914 (Pa. 1976) ...................................................... 5:30 Commonwealth v. Walzack, 360 A.2d 914 (Pa. 1976) ...................................................... 5:30
Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998) ...................... 5:46, 7:14, 7:90 Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998) ...................... 5:46, 7:14, 7:90
Commonwealth v. Watkins, 843 A.2d 1203 (Pa. 2003), cert. denied, Commonwealth v. Watkins, 843 A.2d 1203 (Pa. 2003), cert. denied,
543 U.S. 960 (2004) ..................................................................................................................7:39, 7:51 543 U.S. 960 (2004) ..................................................................................................................7:39, 7:51
Commonwealth v. Watson, 945 A.2d 174 (Pa. Super. 2008) .......................................... 8:15 Commonwealth v. Watson, 945 A.2d 174 (Pa. Super. 2008) .......................................... 8:15
Commonwealth v. Wattley, 880 A.2d 682 (Pa. Super. 2005) .............................. 6:38, 6:39 Commonwealth v. Wattley, 880 A.2d 682 (Pa. Super. 2005) .............................. 6:38, 6:39
Commonwealth v. Weakley, 972 A.2d 1182 (Pa. Super. 2009), Commonwealth v. Weakley, 972 A.2d 1182 (Pa. Super. 2009),
Commonwealth v. Weber, 701 A.2d 531 (Pa. 1997) ............................................... 6:48, 6:49 Commonwealth v. Weber, 701 A.2d 531 (Pa. 1997) ............................................... 6:48, 6:49
Commonwealth v. Weeks, 831 A.2d 1194 (Pa. Super. 2003) .......................................... 8:29 Commonwealth v. Weeks, 831 A.2d 1194 (Pa. Super. 2003) .......................................... 8:29
Commonwealth v. Weichell, 847 N.E.2d 1080 (Mass. 2006) .......................................... 7:76 Commonwealth v. Weichell, 847 N.E.2d 1080 (Mass. 2006) .......................................... 7:76
Commonwealth v. Weiss, 81 A.3d 767 (Pa. 2013) ................................................... 6:52, 7:69 Commonwealth v. Weiss, 81 A.3d 767 (Pa. 2013) ................................................... 6:52, 7:69
Commonwealth v. West, 834 A.2d 625 (Pa. Super. 2003) ................................................ 6:37 Commonwealth v. West, 834 A.2d 625 (Pa. Super. 2003) ................................................ 6:37
Commonwealth v. West, 938 A.2d 1034 (Pa. 2007) ........................................................... 9:17 Commonwealth v. West, 938 A.2d 1034 (Pa. 2007) ........................................................... 9:17
Commonwealth v. Whanger, 30 A.3d 1212 (Pa. Super. 2011), appeal denied, Commonwealth v. Whanger, 30 A.3d 1212 (Pa. Super. 2011), appeal denied,
42 A.3d 293 (Pa. 2012) ................................................................................................................... 11:41 42 A.3d 293 (Pa. 2012) ................................................................................................................... 11:41
Commonwealth v. White, 818 A.2d 555 (Pa. Super. 2003), Commonwealth v. White, 818 A.2d 555 (Pa. Super. 2003),
rev. in part on other grounds, 910 A.2d 648 (Pa. 2006) ............................................ 10:4, 10:6 rev. in part on other grounds, 910 A.2d 648 (Pa. 2006) ............................................ 10:4, 10:6
Commonwealth v. Whitmore, 912 A.2d 827 (Pa. 2006) ................................................... 6:42 Commonwealth v. Whitmore, 912 A.2d 827 (Pa. 2006) ................................................... 6:42
Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000) ................................ 1:6, 3:12, 10:24 Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000) ................................ 1:6, 3:12, 10:24
Commonwealth v. Williams, 439 A.2d 765 (Pa. Super. 1982) ....................................... 5:36 Commonwealth v. Williams, 439 A.2d 765 (Pa. Super. 1982) ....................................... 5:36
Commonwealth v. Williams, 715 A.2d 1101 (Pa. 1998) ............................................... 10:19 Commonwealth v. Williams, 715 A.2d 1101 (Pa. 1998) ............................................... 10:19
Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999) ..................................................... 11:5 Commonwealth v. Williams, 733 A.2d 593 (Pa. 1999) ..................................................... 11:5
R-37 R-37
Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) .............................. 9:57, 11:5, 11:7 Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003) .............................. 9:57, 11:5, 11:7
Commonwealth v. Williams, 868 A.2d 529 (Pa. Super. 2005), appeal denied, Commonwealth v. Williams, 868 A.2d 529 (Pa. Super. 2005), appeal denied,
890 A.2d 1059 (Pa. 2005) ............................................................................................................... 9:55 890 A.2d 1059 (Pa. 2005) ............................................................................................................... 9:55
Commonwealth v. Williams, 877 A.2d 471, 478 (Pa. Super. 2005), Commonwealth v. Williams, 877 A.2d 471, 478 (Pa. Super. 2005),
Commonwealth v. Williams, 909 A.2d 383 (Pa.Super. 2006) ........................................ 8:30 Commonwealth v. Williams, 909 A.2d 383 (Pa.Super. 2006) ........................................ 8:30
Commonwealth v. Williams, 35 A.3d 44 (Pa. Super. 2011), Commonwealth v. Williams, 35 A.3d 44 (Pa. Super. 2011),
Commonwealth v. Williams, 84 A.3d 680 (Pa. 2014) ............................................ 7:26, 7:27 Commonwealth v. Williams, 84 A.3d 680 (Pa. 2014) ............................................ 7:26, 7:27
Commonwealth v. Wills, 476 A.2d 1362 (Pa. Super. 1984) ............................................. 6:44 Commonwealth v. Wills, 476 A.2d 1362 (Pa. Super. 1984) ............................................. 6:44
Commonwealth v. Wilson, 602 A.2d 1290 (Pa. 1992) ................................ 6:54, 6:56, 7:95 Commonwealth v. Wilson, 602 A.2d 1290 (Pa. 1992) ................................ 6:54, 6:56, 7:95
Commonwealth v. Wilson, 672 A.2d 293 (Pa. 1996), Commonwealth v. Wilson, 672 A.2d 293 (Pa. 1996),
cert. denied, 519 U.S. 951 (1996) ..................................................................................................... 7:6 cert. denied, 519 U.S. 951 (1996) ..................................................................................................... 7:6
Commonwealth v. Wilson, 707 A.2d 1114 (Pa. 1998) ............................................ 7:70, 7:71 Commonwealth v. Wilson, 707 A.2d 1114 (Pa. 1998) ............................................ 7:70, 7:71
Commonwealth v. Wilson, 825 A.2d 710 (Pa. Super. 2003) .................... 2:10, 2:11, 2:20 Commonwealth v. Wilson, 825 A.2d 710 (Pa. Super. 2003) .................... 2:10, 2:11, 2:20
Commonwealth v. Wilson, 910 A.2d 10 (Pa. 2006) ........................................................... 11:6 Commonwealth v. Wilson, 910 A.2d 10 (Pa. 2006) ........................................................... 11:6
Commonwealth v. Winger, 957 A.2d 325 (Pa. Super. 2008) ............................. 4:10, 4:13 Commonwealth v. Winger, 957 A.2d 325 (Pa. Super. 2008) ............................. 4:10, 4:13
Commonwealth v. Witman, 750 A.2d 327 (Pa. Super. 2000), appeal denied, Commonwealth v. Witman, 750 A.2d 327 (Pa. Super. 2000), appeal denied,
764 A.2d 1053 (Pa. 2000), cert. denied, 534 U.S. 815 (2001) ........................ 7:101, 7:102 764 A.2d 1053 (Pa. 2000), cert. denied, 534 U.S. 815 (2001) ........................ 7:101, 7:102
Commonwealth v. Wood, 637 A.2d 1335 (Pa. Super. 1994) ....................................... 10:18 Commonwealth v. Wood, 637 A.2d 1335 (Pa. Super. 1994) ....................................... 10:18
Commonwealth v. Woodell, 496 A.2d 1210 (Pa. Super. 1985) ...................................... 6:34 Commonwealth v. Woodell, 496 A.2d 1210 (Pa. Super. 1985) ...................................... 6:34
Commonwealth v. Wooten, 545 A.2d 876 (Pa. 1988) ........................................................ 2:16 Commonwealth v. Wooten, 545 A.2d 876 (Pa. 1988) ........................................................ 2:16
Commonwealth v. Wright, 388 A.2d 1084 (Pa. Super. 1978) ......................................... 7:13 Commonwealth v. Wright, 388 A.2d 1084 (Pa. Super. 1978) ......................................... 7:13
Commonwealth v. Wright, 494 A.2d 354 (Pa. 1985), affd, Commonwealth v. Wright, 494 A.2d 354 (Pa. 1985), affd,
477 U.S. 79 (1986) .............................................................................................................................. 9:62 477 U.S. 79 (1986) .............................................................................................................................. 9:62
Commonwealth v. Wynn, 850 A.2d 730 (Pa. Super. 2004), Commonwealth v. Wynn, 850 A.2d 730 (Pa. Super. 2004),
appeal denied, 862 A.2d 1255 (2004) .......................................................................................... 7:96 appeal denied, 862 A.2d 1255 (2004) .......................................................................................... 7:96
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Commonwealth v. Xiong, 630 A.2d 446, 452 (Pa.Super. 1993), appeal denied, Commonwealth v. Xiong, 630 A.2d 446, 452 (Pa.Super. 1993), appeal denied,
641 A.2d 309 (Pa. 1994) ............................................................................................. 2:21, 7:64, 8:37 641 A.2d 309 (Pa. 1994) ............................................................................................. 2:21, 7:64, 8:37
Commonwealth v. Yasipour, 957 A.2d 734 (Pa. Super. 2008), Commonwealth v. Yasipour, 957 A.2d 734 (Pa. Super. 2008),
appeal denied, 980 A.2d 111 (Pa. 2009) ............................................................................................... appeal denied, 980 A.2d 111 (Pa. 2009) ...............................................................................................
Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013) .......................................................7:83, 7:84 Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013) .......................................................7:83, 7:84
Commonwealth v. Yost, 502 A.2d 216 (Pa. Super. 1985) ...................................... 6:33, 6:35 Commonwealth v. Yost, 502 A.2d 216 (Pa. Super. 1985) ...................................... 6:33, 6:35
Commonwealth v. Young, 419 A.2d 523 (Pa. 1980) ........................................................... 5:29 Commonwealth v. Young, 419 A.2d 523 (Pa. 1980) ........................................................... 5:29
Commonwealth v. Young, 572 A.2d 1217 (Pa. 1989), Commonwealth v. Young, 572 A.2d 1217 (Pa. 1989),
cert denied, 511 U.S. 1012 (1994) ................................................................................................. 5:29 cert denied, 511 U.S. 1012 (1994) ................................................................................................. 5:29
Commonwealth v. Young, 748 A.2d 166 (Pa. 1999) ............................................................ 7:72 Commonwealth v. Young, 748 A.2d 166 (Pa. 1999) ............................................................ 7:72
Commonwealth v. Young, 873 A.2d 720 (Pa. Super. 2005), appeal denied, Commonwealth v. Young, 873 A.2d 720 (Pa. Super. 2005), appeal denied,
586 Pa. 739, 891 A.2d 733 (2005) ................................................................................................ 8:30 586 Pa. 739, 891 A.2d 733 (2005) ................................................................................................ 8:30
Commonwealth v. Zettlemoyer, 454 A.2d 937 (Pa. 1982), Commonwealth v. Zettlemoyer, 454 A.2d 937 (Pa. 1982),
cert denied, 461 U.S. 970 (1983) .................................................................................................. 5:29 cert denied, 461 U.S. 970 (1983) .................................................................................................. 5:29
Commonwealth v. Zewe, 663 A.2d 195 (Pa. Super. 1995), Commonwealth v. Zewe, 663 A.2d 195 (Pa. Super. 1995),
Commonwealth v. Ziegler, 550 A.2d 567 (Pa. Super. 1988) ........................................... 2:11 Commonwealth v. Ziegler, 550 A.2d 567 (Pa. Super. 1988) ........................................... 2:11
Commonwealth v. Zimmerman, 571 A.2d 1062 (Pa. Super. 1990), Commonwealth v. Zimmerman, 571 A.2d 1062 (Pa. Super. 1990),
appeal denied, 600 A.2d 953 (Pa. 1991), cert. denied, 503 U.S. 945 (1992) .................. 5:7 appeal denied, 600 A.2d 953 (Pa. 1991), cert. denied, 503 U.S. 945 (1992) .................. 5:7
Commonwealth v. Zukauskas, 462 A.2d 236 (Pa. 1983) ................................................. 7:59 Commonwealth v. Zukauskas, 462 A.2d 236 (Pa. 1983) ................................................. 7:59
Commonwealth ex rel. Hilberry v. Maroney, Commonwealth ex rel. Hilberry v. Maroney,

207 A.2d 794 (Pa. 1965) ............................................................................................................ 7:86-87 207 A.2d 794 (Pa. 1965) ............................................................................................................ 7:86-87
Commonwealth ex re. Hilberry v. Maroney, 227 A.2d 159 (Pa. 1967) ..................... 7:86 Commonwealth ex re. Hilberry v. Maroney, 227 A.2d 159 (Pa. 1967) ..................... 7:86
Coppolino v. Noonan, --- A.3d ----, 2014 WL 5140043 (Pa.Cmwlth. 2014) ............ 11:26 Coppolino v. Noonan, --- A.3d ----, 2014 WL 5140043 (Pa.Cmwlth. 2014) ............ 11:26
Crawford v. Washington, 541 U.S. 36 (2004) ........................................................................ 7:81 Crawford v. Washington, 541 U.S. 36 (2004) ........................................................................ 7:81
Croyle v. Smith, 918 A.2d 142 (Pa. Super. 2007) .................................................................. 7:72 Croyle v. Smith, 918 A.2d 142 (Pa. Super. 2007) .................................................................. 7:72
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D D
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ....................... 8:10 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ....................... 8:10
Dauphin County Social Services for Children and Youth v. Department of Public Dauphin County Social Services for Children and Youth v. Department of Public
Welfare, 855 A.2d 159 (Pa. Cmwlth 2004) .............................................................................. 6:62 Welfare, 855 A.2d 159 (Pa. Cmwlth 2004) .............................................................................. 6:62
Davis v. Alaska, 415 U.S. 308 (1974) ......................................................................................... 5:23 Davis v. Alaska, 415 U.S. 308 (1974) ......................................................................................... 5:23
Davis v. Washington, 547 U.S. 813 (2006) .................................................................. 7:82, 7:84 Davis v. Washington, 547 U.S. 813 (2006) .................................................................. 7:82, 7:84
Delaware v. Van Arsdall, 475 U.S. 673 (1986) ..................................................................... 5:23 Delaware v. Van Arsdall, 475 U.S. 673 (1986) ..................................................................... 5:23
Dial v. Vaughn, 733 A.2d 1 (Pa. Cmwlth. 1999) .................................................................... 8:28 Dial v. Vaughn, 733 A.2d 1 (Pa. Cmwlth. 1999) .................................................................... 8:28
Dusky v. United States, 362 U.S. 402 (1960) .......................................................................... 7:87 Dusky v. United States, 362 U.S. 402 (1960) .......................................................................... 7:87
F F
Faretta v. California, 422 U.S. 806 (1975) ............................................................................. 7:19 Faretta v. California, 422 U.S. 806 (1975) ............................................................................. 7:19
Fields v. Murray, 49 F.3d 1024 (4th Cir. 1995) ..................................................................... 7:20 Fields v. Murray, 49 F.3d 1024 (4th Cir. 1995) ..................................................................... 7:20
Folger ex rel. Folger v. Dugan, 876 A.2d 1049 (Pa.Super. 2005), Folger ex rel. Folger v. Dugan, 876 A.2d 1049 (Pa.Super. 2005),
appeal denied, 587 Pa. 695, 897 A.2d 458 (2006) ..................................................... 8:11, 8:16 appeal denied, 587 Pa. 695, 897 A.2d 458 (2006) ..................................................... 8:11, 8:16
Freed v. Geisinger Medical Center, et al., 971 A.2d 1202 (Pa. 2009), Freed v. Geisinger Medical Center, et al., 971 A.2d 1202 (Pa. 2009),
affd on reargument, 5 A.3d 212 (Pa. 2010) .............................................................................. 8:18 affd on reargument, 5 A.3d 212 (Pa. 2010) .............................................................................. 8:18
Frye v. United States, 293 F. 1013 (D.C.Cir. 1923) ........................................ 8:10, 8:11, 8:25 Frye v. United States, 293 F. 1013 (D.C.Cir. 1923) ........................................ 8:10, 8:11, 8:25
G G
Gagne v. Booker, 680 F.3d 493 (6th Cir. 2012), Gagne v. Booker, 680 F.3d 493 (6th Cir. 2012),
cert. denied, 133 S.Ct. 481 (2012) ................................................................................................. 5:23 cert. denied, 133 S.Ct. 481 (2012) ................................................................................................. 5:23
Globe Newspaper Co. v. Superior Court, 457 U.S. 596f (1982) ......................... 7:12, 7:13 Globe Newspaper Co. v. Superior Court, 457 U.S. 596f (1982) ......................... 7:12, 7:13
Grady v. Frito Lay, 839 A.2d 1038 (Pa. 2003) ........................................................................ 8:11 Grady v. Frito Lay, 839 A.2d 1038 (Pa. 2003) ........................................................................ 8:11
Greater Erie Industrial Development Corp. v. Presque Isle Downs, Inc., Greater Erie Industrial Development Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222 (Pa. Super. 2014) ................................................................................................... 10:16 88 A.3d 222 (Pa. Super. 2014) ................................................................................................... 10:16
Grimaud v. Commonwealth, 865 A.2d 835 (Pa. 2005) ..................................................... 5:21 Grimaud v. Commonwealth, 865 A.2d 835 (Pa. 2005) ..................................................... 5:21
R-40 R-40
H H
Hammer v. Karlen, 342 F.3d 807 (7th Cir. 2003) ................................................................ 5:24 Hammer v. Karlen, 342 F.3d 807 (7th Cir. 2003) ................................................................ 5:24
Handley v. State, 515 So.2d 121 (Ala.Crim.App. 1987) ...................................................... 8:31 Handley v. State, 515 So.2d 121 (Ala.Crim.App. 1987) ...................................................... 8:31
Herb v. Snyder, 686 A.2d 412, (Pa. Super. 1996), appeal denied, Herb v. Snyder, 686 A.2d 412, (Pa. Super. 1996), appeal denied,
698 A.2d 67 (Pa. 1997) ................................................................................................................... 10:8 698 A.2d 67 (Pa. 1997) ................................................................................................................... 10:8
I I
In Interest of J.R., 648 A.2d 28 (Pa. Super. 1994), appeal denied, In Interest of J.R., 648 A.2d 28 (Pa. Super. 1994), appeal denied,
655 A.2d 515 (Pa. 1995) ..................................................................... 2:10, 2:11, 2:16, 2:20, 7:91 655 A.2d 515 (Pa. 1995) ..................................................................... 2:10, 2:11, 2:16, 2:20, 7:91
In Interest of Lawrence J., 456 A.2d 647 (Pa. Super. 1983) ................................... 2:4, 7:16 In Interest of Lawrence J., 456 A.2d 647 (Pa. Super. 1983) ................................... 2:4, 7:16
In re A.D., 771 A.2d 45 (Pa. Super. 2001) .......................................................... 2:11, 2:15, 2:19 In re A.D., 771 A.2d 45 (Pa. Super. 2001) .......................................................... 2:11, 2:15, 2:19
In re: B.A.M., 806 A.2d 893 (Pa. Super. 2002) ......................................................................... 5:16 In re: B.A.M., 806 A.2d 893 (Pa. Super. 2002) ......................................................................... 5:16
In re C.O., 84 A.3d 726, 731 (Pa. Super. 2014) .................................................................... 10:21 In re C.O., 84 A.3d 726, 731 (Pa. Super. 2014) .................................................................... 10:21
In re D.Y., 34 A.3d 177 (Pa. Super. 2011), In re D.Y., 34 A.3d 177 (Pa. Super. 2011),
In re E.R., 995 A.2d 326 (Pa. 2010) ............................................................................................ 2:28 In re E.R., 995 A.2d 326 (Pa. 2010) ............................................................................................ 2:28
In re J.E.D., 879 A.2d 288 (Pa. Super. 2005), appeal denied, In re J.E.D., 879 A.2d 288 (Pa. Super. 2005), appeal denied,
889 A.2d 1216 (Pa. 2005) ............................................................................................................... 10:4 889 A.2d 1216 (Pa. 2005) ............................................................................................................... 10:4
In re J.M., 89 A.3d 688 (Pa.Super. 2014) .................................................................. 11:13, 11:20 In re J.M., 89 A.3d 688 (Pa.Super. 2014) .................................................................. 11:13, 11:20
In re Lokuta, 11 A.3d 427 (Pa. 2011) ......................................................................................... 6:42 In re Lokuta, 11 A.3d 427 (Pa. 2011) ......................................................................................... 6:42
In re M.D., 839 A.2d 1116 (Pa. Super. 2003) ............................................................... 10:4, 10:5 In re M.D., 839 A.2d 1116 (Pa. Super. 2003) ............................................................... 10:4, 10:5
In re M.K., 636 A.2d 198 (Pa. Super. 1994) .............................................................................. 6:46 In re M.K., 636 A.2d 198 (Pa. Super. 1994) .............................................................................. 6:46
In re N.C., 74 A.3d 271 (Pa. Super. 2013) ........................................................... 7:80, 7:81, 7:83 In re N.C., 74 A.3d 271 (Pa. Super. 2013) ........................................................... 7:80, 7:81, 7:83
In re O.J., 958 A.2d 561 (Pa. Super. 2008), appeal denied, In re O.J., 958 A.2d 561 (Pa. Super. 2008), appeal denied,
989 A.2d 918 (Pa. 2010) .............................................................................................................. 10:21 989 A.2d 918 (Pa. 2010) .............................................................................................................. 10:21
R-41 R-41
In re Subpoena No. 22, 709 A.2d 385 (Pa. Super. 1998) ................................................... 6:53 In re Subpoena No. 22, 709 A.2d 385 (Pa. Super. 1998) ................................................... 6:53
In re T.B., 75 A.3d 485 (Pa. Super. 2013) .................................................................................. 6:53 In re T.B., 75 A.3d 485 (Pa. Super. 2013) .................................................................................. 6:53
Iowa v. Tovar, 541 U.S. 77 (2004) ............................................................................................... 7:19 Iowa v. Tovar, 541 U.S. 77 (2004) ............................................................................................... 7:19
Isaacson v. Mobile Propane Corporation, 461 A.2d 625 (Pa. Super. 1983) ............. 7:66 Isaacson v. Mobile Propane Corporation, 461 A.2d 625 (Pa. Super. 1983) ............. 7:66
J J
Johnson v. Ogershok, 134 Fed.Appx. 535, 2005 WL 1394872 (3d Cir. 2005) ........... 8:28 Johnson v. Ogershok, 134 Fed.Appx. 535, 2005 WL 1394872 (3d Cir. 2005) ........... 8:28
Johnson v. Pennsylvania Board of Probation and Parole, Johnson v. Pennsylvania Board of Probation and Parole,
163 Fed.Appx. 159, 2006 WL 167445 (3d Cir. 2006) .......................................................... 8:28 163 Fed.Appx. 159, 2006 WL 167445 (3d Cir. 2006) .......................................................... 8:28
J.S. v. Whetzel, 860 A.2d 1112 (Pa. Super. 2004) .............................................................. 10:10 J.S. v. Whetzel, 860 A.2d 1112 (Pa. Super. 2004) .............................................................. 10:10
K K
Kennedy v. MendozaMartinez, 372 U.S. 144 (1963) ................................................ 11:24 Kennedy v. MendozaMartinez, 372 U.S. 144 (1963) ................................................ 11:24
Kensey v. Kensey, 877 A.2d 1284 (Pa. Super. 2005) .......................................................... 10:9 Kensey v. Kensey, 877 A.2d 1284 (Pa. Super. 2005) .......................................................... 10:9
Kuch v. Rapelje, 2010 WL 3419823 (E.D.Mich. 2010) ....................................................... 3:43 Kuch v. Rapelje, 2010 WL 3419823 (E.D.Mich. 2010) ....................................................... 3:43
L L
Lepley v. Lycoming County Court of Common Pleas, Lepley v. Lycoming County Court of Common Pleas,
393 A.2d 306 (Pa. Super. 1978) ..................................................................................................... 6:35 393 A.2d 306 (Pa. Super. 1978) ..................................................................................................... 6:35
M M
Maryland v. King, --- U.S. ---, 133 S.Ct. 1958 ........................................................................ 11:51 Maryland v. King, --- U.S. ---, 133 S.Ct. 1958 ........................................................................ 11:51
McCance v. McCance, 908 A.2d 905 (Pa. Super. 2006) ...................................................... 6:23 McCance v. McCance, 908 A.2d 905 (Pa. Super. 2006) ...................................................... 6:23
Michigan v. Bryant, 131 S.Ct. 1143 (2011) ............................................................................. 7:84 Michigan v. Bryant, 131 S.Ct. 1143 (2011) ............................................................................. 7:84
Michigan v. Lucas, 500 U.S. 145 (1991) .................................................................................... 5:23 Michigan v. Lucas, 500 U.S. 145 (1991) .................................................................................... 5:23
R-42 R-42
Miller v. Brass Rail Tavern, 664 A.2d 525 (Pa. 1995) ...................................................... 8:11 Miller v. Brass Rail Tavern, 664 A.2d 525 (Pa. 1995) ...................................................... 8:11
Miller v. California, 413 U.S. 15 (1973) ......................................................................... 4:32, 4:35 Miller v. California, 413 U.S. 15 (1973) ......................................................................... 4:32, 4:35
N N
Nevada v. Jackson, 133 S.Ct. 1990 (2013) .................................................................... 5:23, 5:24 Nevada v. Jackson, 133 S.Ct. 1990 (2013) .................................................................... 5:23, 5:24
O O
Ohio v. Roberts, 448 U.S. 56 (1980) ............................................................................................ 7:83 Ohio v. Roberts, 448 U.S. 56 (1980) ............................................................................................ 7:83
Owens v. Beard, 829 F.Supp. 736 (M.D. Pa. 1993) .................................................................. 9:6 Owens v. Beard, 829 F.Supp. 736 (M.D. Pa. 1993) .................................................................. 9:6
P P
Paliometros v. Lovola, 932 A.2d 128 (Pa. Super. 2007) .................................................... 1:24 Paliometros v. Lovola, 932 A.2d 128 (Pa. Super. 2007) .................................................... 1:24
Partin v. Commonwealth, 168 S.W. 3d 23 (Ky. 2005) ....................................................... 7:20 Partin v. Commonwealth, 168 S.W. 3d 23 (Ky. 2005) ....................................................... 7:20
Paxton v. State, 282 S.E.2d 912 (Ga. 1981), Paxton v. State, 282 S.E.2d 912 (Ga. 1981),
writ denied 248 Ga. 231, 283 S.E.2d 235 (1982) ................................................................... 8:33 writ denied 248 Ga. 231, 283 S.E.2d 235 (1982) ................................................................... 8:33
Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ................. 6:50, 6:56, 6:60, 6:62, 6:63, 6:64 Pennsylvania v. Ritchie, 480 U.S. 39 (1987) ................. 6:50, 6:56, 6:60, 6:62, 6:63, 6:64
People v. Columbo, 455 N.E.2d 733 (Ill. 1983), People v. Columbo, 455 N.E.2d 733 (Ill. 1983),
cert. denied 467 U.S. 1208 (1984) ................................................................................................ 8:33 cert. denied 467 U.S. 1208 (1984) ................................................................................................ 8:33
People v. Jaffe, 78 N.E. 169 (N.Y. 1906) ..................................................................................... 5:27 People v. Jaffe, 78 N.E. 169 (N.Y. 1906) ..................................................................................... 5:27
People v. Marsh, 177 Mich. App. 161, 441 N.W.2d 33 (1989) ...................................... 8:31 People v. Marsh, 177 Mich. App. 161, 441 N.W.2d 33 (1989) ...................................... 8:31
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) ........................................ 7:13 Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) ........................................ 7:13
Pressley v. Georgia, 558 U.S. 209 (2010) ................................................................................. 7:13 Pressley v. Georgia, 558 U.S. 209 (2010) ................................................................................. 7:13
Primavera v. Celotex Corp., 608 A.2d 515 (Pa. Super. 1992), Primavera v. Celotex Corp., 608 A.2d 515 (Pa. Super. 1992),
appeal denied, 622 A.2d 1374 (Pa. 1993) ................................................................................. 8:13 appeal denied, 622 A.2d 1374 (Pa. 1993) ................................................................................. 8:13
R-43 R-43
Q Q
Quinn v. Haynes, 234 F.3d 837 (4th Cir. 2000), Quinn v. Haynes, 234 F.3d 837 (4th Cir. 2000),
R R
Regina v. MNaghten, 10 Cl. & Fin. 200, 8 Eng.Rep. 718 (1843) ..................................... 5:28 Regina v. MNaghten, 10 Cl. & Fin. 200, 8 Eng.Rep. 718 (1843) ..................................... 5:28
Rock v. Arkansas, 483 U.S. 44 (1987) ........................................................................................ 5:23 Rock v. Arkansas, 483 U.S. 44 (1987) ........................................................................................ 5:23
Rohm and Haas Co. v. Continental Gas Co., 781 A.2d 1172 (Pa. 2001) .................... 9:27 Rohm and Haas Co. v. Continental Gas Co., 781 A.2d 1172 (Pa. 2001) .................... 9:27
Rosche v. McCoy, 156 A.2d 307 (Pa. 1959) .............................................................................. 7:88 Rosche v. McCoy, 156 A.2d 307 (Pa. 1959) .............................................................................. 7:88
S S
Singleton v. Lavan, 834 A.2d 672 (Pa. Cmwlth. 2003) ....................................................... 9:14 Singleton v. Lavan, 834 A.2d 672 (Pa. Cmwlth. 2003) ....................................................... 9:14
Smith v. Doe, 538 U.S. 84 (2003) ................................................................................. 11:23, 11:26 Smith v. Doe, 538 U.S. 84 (2003) ................................................................................. 11:23, 11:26
Snyder v. Snyder, 629 A.2d 977 (Pa. Super. 1993) .............................................................. 6:23 Snyder v. Snyder, 629 A.2d 977 (Pa. Super. 1993) .............................................................. 6:23
State v. Clayton, 646 P.2d 723 (Utah 1982) ........................................................................... 8:33 State v. Clayton, 646 P.2d 723 (Utah 1982) ........................................................................... 8:33
State v. Cureaux, 736 So.2d 318 (La.App.4th Cir 1999) .................................................... 7:76 State v. Cureaux, 736 So.2d 318 (La.App.4th Cir 1999) .................................................... 7:76
State v. Haner, 928 A.2d 518 (Vt. 2007) ................................................................................... 7:76 State v. Haner, 928 A.2d 518 (Vt. 2007) ................................................................................... 7:76
State v. Kersting, 292 Or. 350, 638 P.2d 1145 (1982) ....................................................... 8:33 State v. Kersting, 292 Or. 350, 638 P.2d 1145 (1982) ....................................................... 8:33
State v. Melson, 638 S.W.2d 342 (Tenn.1982), cert. denied, State v. Melson, 638 S.W.2d 342 (Tenn.1982), cert. denied,
459 U.S. 1137 (1983) ........................................................................................................................ 8:33 459 U.S. 1137 (1983) ........................................................................................................................ 8:33
State v. Pratt, 306 N.C. 673, 295 S.E.2d 462 (1982) ............................................................ 8:33 State v. Pratt, 306 N.C. 673, 295 S.E.2d 462 (1982) ............................................................ 8:33
State v. Richards, 166 Ariz. 576, 804 P.2d 109 (1990) ...................................................... 8:31 State v. Richards, 166 Ariz. 576, 804 P.2d 109 (1990) ...................................................... 8:31
State v. Stinson, 134 Wis.2d 224, 397 N.W.2d 136 (1986) ............................................. 8:32 State v. Stinson, 134 Wis.2d 224, 397 N.W.2d 136 (1986) ............................................. 8:32
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T T
Thompson v. Thompson, 963 A.2d 474 (Pa. Super. 2008) ............................................... 3:36 Thompson v. Thompson, 963 A.2d 474 (Pa. Super. 2008) ............................................... 3:36
Trach v. Fellin, 817 A.2d 1102 (Pa.Super. 2003), appeal denied, Trach v. Fellin, 817 A.2d 1102 (Pa.Super. 2003), appeal denied,
847 A.2d 1288 (Pa. 2004) ................................................................................................................ 8:11 847 A.2d 1288 (Pa. 2004) ................................................................................................................ 8:11
U U
United States v. Conway, 507 F.2d 1047 (5th Cir. 1975) .................................................. 5:26 United States v. Conway, 507 F.2d 1047 (5th Cir. 1975) .................................................. 5:26
United States v. Cronic, 466 U.S. 648 (1984) ......................................................................... 5:12 United States v. Cronic, 466 U.S. 648 (1984) ......................................................................... 5:12
United States v. Cyphers, 553 F.2d 1064 (7th Cir. 1977), cert. denied, United States v. Cyphers, 553 F.2d 1064 (7th Cir. 1977), cert. denied,
434 U.S. 843 (1978) ............................................................................................................................. 8:33 434 U.S. 843 (1978) ............................................................................................................................. 8:33
United States v. Garcia, 7 F.3d 885 (9th Cir.1993) ............................................................ 7:28 United States v. Garcia, 7 F.3d 885 (9th Cir.1993) ............................................................ 7:28
United States v. Haskins, 536 F.2d 775 (8th Cir.1976), cert. denied, United States v. Haskins, 536 F.2d 775 (8th Cir.1976), cert. denied,
429 U.S. 898 (1977) ............................................................................................................................ 8:33 429 U.S. 898 (1977) ............................................................................................................................ 8:33
United States v. Singleton, 107 F.3d 1091 (4th Cir. 1997) .............................................. 7:20 United States v. Singleton, 107 F.3d 1091 (4th Cir. 1997) .............................................. 7:20
United States v. Weekley, 130 F.3d 747 (6th Cir.1997) .................................................... 7:28 United States v. Weekley, 130 F.3d 747 (6th Cir.1997) .................................................... 7:28
V V
V.B.T. v. Family Services of Western Pennsylvania, V.B.T. v. Family Services of Western Pennsylvania,
705 A.2d 1325 (Pa. Super. 1998) .................................................................................................. 6:55 705 A.2d 1325 (Pa. Super. 1998) .................................................................................................. 6:55
Verdict v. State, 315 Ark. 436, 868 S.W.2d 443 (1993) .................................................... 8:31 Verdict v. State, 315 Ark. 436, 868 S.W.2d 443 (1993) .................................................... 8:31
Viruet v. Cancel, 727 A.2d 591 (Pa. Super. 1999) ................................................................. 6:23 Viruet v. Cancel, 727 A.2d 591 (Pa. Super. 1999) ................................................................. 6:23
W W
Waller v. Georgia, 467 U.S. 39 (1984) ...................................................................................... 7:13 Waller v. Georgia, 467 U.S. 39 (1984) ...................................................................................... 7:13
White v. Coplan, 399 F.3d 18 (1st Cir. 2005), White v. Coplan, 399 F.3d 18 (1st Cir. 2005),
cert. denied, 546 U.S. 972 (2005) ...................................................................................... 5:23, 5:25 cert. denied, 546 U.S. 972 (2005) ...................................................................................... 5:23, 5:25
R-45 R-45
Williams v. Florida, 399 U.S. 78 (1983) ...................................................................................... 5:6 Williams v. Florida, 399 U.S. 78 (1983) ...................................................................................... 5:6
Williams v. Oklahoma, 358 U.S. 576 (1959) ............................................................................. 9:9 Williams v. Oklahoma, 358 U.S. 576 (1959) ............................................................................. 9:9
Williams v. Taylor, 529 U.S. 362 (2000) .................................................................................. 5:24 Williams v. Taylor, 529 U.S. 362 (2000) .................................................................................. 5:24
R-46 R-46
Table of Authorities Table of Authorities

* References are to Chapter and Page Number. * References are to Chapter and Page Number.
United States Constitution United States Constitution

U.S. Constitution Amend. VI ............................................................................................................. 9:59 U.S. Constitution Amend. VI ............................................................................................................. 9:59
Pennsylvania Constitution Pennsylvania Constitution

Pennsylvania Constitution Art. 1, 1 ........................................................................................... 16:6 Pennsylvania Constitution Art. 1, 1 ........................................................................................... 16:6
Pennsylvania Constitution Art. 1, 9 ........................................................................5:4, 9:59, 10:4 Pennsylvania Constitution Art. 1, 9 ........................................................................5:4, 9:59, 10:4
Pennsylvania Constitution Art. 1, 14 .................................................................................. 6:5, 6:6 Pennsylvania Constitution Art. 1, 14 .................................................................................. 6:5, 6:6
Pennsylvania Constitution Art. 3, 3 ........................................................................................... 11:5 Pennsylvania Constitution Art. 3, 3 ........................................................................................... 11:5
United States Statutes United States Statutes

18 U.S.C. 1591 ................................................................................................................................. 11:19 18 U.S.C. 1591 ................................................................................................................................. 11:19
18 U.S.C. 1801 ................................................................................................................................. 11:18 18 U.S.C. 1801 ................................................................................................................................. 11:18
18 U.S.C. 2241 ................................................................................................................................. 11:19 18 U.S.C. 2241 ................................................................................................................................. 11:19
18 U.S.C. 2242 ................................................................................................................................. 11:19 18 U.S.C. 2242 ................................................................................................................................. 11:19
18 U.S.C. 2243 ................................................................................................................................. 11:19 18 U.S.C. 2243 ................................................................................................................................. 11:19
18 U.S.C. 2244 ................................................................................................................................. 11:19 18 U.S.C. 2244 ................................................................................................................................. 11:19
18 U.S.C. 2251 ................................................................................................................................. 11:19 18 U.S.C. 2251 ................................................................................................................................. 11:19
18 U.S.C. 2251A .............................................................................................................................. 11:19 18 U.S.C. 2251A .............................................................................................................................. 11:19
18 U.S.C. 2252(a) ........................................................................................................................... 11:18 18 U.S.C. 2252(a) ........................................................................................................................... 11:18
18 U.S.C. 2252A .............................................................................................................................. 11:18 18 U.S.C. 2252A .............................................................................................................................. 11:18
18 U.S.C. 2252B .............................................................................................................................. 11:18 18 U.S.C. 2252B .............................................................................................................................. 11:18
18 U.S.C. 2252C ............................................................................................................................... 11:18 18 U.S.C. 2252C ............................................................................................................................... 11:18
18 U.S.C. 2254(a) .............................................................................................................................. 5:23 18 U.S.C. 2254(a) .............................................................................................................................. 5:23
18 U.S.C. 2254(b) .............................................................................................................................. 5:23 18 U.S.C. 2254(b) .............................................................................................................................. 5:23
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18 U.S.C. 2254(d) .............................................................................................................................. 5:23 18 U.S.C. 2254(d) .............................................................................................................................. 5:23
18 U.S.C. 2260 ................................................................................................................................. 11:19 18 U.S.C. 2260 ................................................................................................................................. 11:19
18 U.S.C. 2422(a) ........................................................................................................................... 11:18 18 U.S.C. 2422(a) ........................................................................................................................... 11:18
18 U.S.C. 2423(b) ........................................................................................................................... 11:18 18 U.S.C. 2423(b) ........................................................................................................................... 11:18
18 U.S.C. 2423(c) ............................................................................................................................ 11:18 18 U.S.C. 2423(c) ............................................................................................................................ 11:18
18 U.S.C. 2424 ................................................................................................................................. 11:18 18 U.S.C. 2424 ................................................................................................................................. 11:18
18 U.S.C. 2425 ................................................................................................................................. 11:18 18 U.S.C. 2425 ................................................................................................................................. 11:18
42 U.S.C. 16927 .................................................................................................................................. 11:9 42 U.S.C. 16927 .................................................................................................................................. 11:9
Pennsylvania Statutes Pennsylvania Statutes

1 Pa.C.S.A. 1921 .................................................................................................................................... 2:16 1 Pa.C.S.A. 1921 .................................................................................................................................... 2:16
1 Pa.C.S.A. 1921(b) ................................................................................................................................ 3:7 1 Pa.C.S.A. 1921(b) ................................................................................................................................ 3:7
1 Pa.C.S.A. 1922 .................................................................................................................................... 2:16 1 Pa.C.S.A. 1922 .................................................................................................................................... 2:16
1 Pa.C.S.A. 1928(b)(1) .......................................................................................................................... 3:8 1 Pa.C.S.A. 1928(b)(1) .......................................................................................................................... 3:8
18 Pa.Stat. 11.201 ........................................................................................... 1:27, 9:12. 9:61, 11:44 18 Pa.Stat. 11.201 ........................................................................................... 1:27, 9:12. 9:61, 11:44
18 Pa.C.S.A. 103 ..................................................................................................................................... 3:39 18 Pa.C.S.A. 103 ..................................................................................................................................... 3:39
18 Pa.C.S.A. 105 ........................................................................................................................................ 3:7 18 Pa.C.S.A. 105 ........................................................................................................................................ 3:7
18 Pa.C.S.A. 302 ..................................................................................................................................... 3:28 18 Pa.C.S.A. 302 ..................................................................................................................................... 3:28

18 Pa.C.S.A. 302(b)(3) ........................................................................................................................ 5:20 18 Pa.C.S.A. 302(b)(3) ........................................................................................................................ 5:20
18 Pa.C.S.A. 304 ................................................................................................................ 5:36; 5:38-39 18 Pa.C.S.A. 304 ................................................................................................................ 5:36; 5:38-39
18 Pa.C.S.A. 308 ..................................................................................................................................... 5:34 18 Pa.C.S.A. 308 ..................................................................................................................................... 5:34
18 Pa.C.S.A. 309(b) .................................................................................................................. 5:18; 5:19 18 Pa.C.S.A. 309(b) .................................................................................................................. 5:18; 5:19
18 PA.C.S.A. 311 ............................................................................................................................. 5:13-14 18 PA.C.S.A. 311 ............................................................................................................................. 5:13-14
18 Pa.C.S.A. 311(c) ............................................................................................................................... 5:16 18 Pa.C.S.A. 311(c) ............................................................................................................................... 5:16
18 Pa.C.S.A. 314(a) .............................................................................................................................. 5:31 18 Pa.C.S.A. 314(a) .............................................................................................................................. 5:31
18 Pa.C.S.A. 314(b) .............................................................................................................................. 5:32 18 Pa.C.S.A. 314(b) .............................................................................................................................. 5:32
18 Pa.C.S.A. 314(c) ............................................................................................................................... 5:31 18 Pa.C.S.A. 314(c) ............................................................................................................................... 5:31
R-48 R-48
18 Pa.C.S.A. 314(d) .............................................................................................................................. 5:31 18 Pa.C.S.A. 314(d) .............................................................................................................................. 5:31
18 Pa.C.S.A. 315(a) .............................................................................................................................. 5:28 18 Pa.C.S.A. 315(a) .............................................................................................................................. 5:28
18 Pa.C.S.A. 315(b) ....................................................................................................................... 5:28-30 18 Pa.C.S.A. 315(b) ....................................................................................................................... 5:28-30
18 Pa.C.S.A. 901 ...................................................................................... 2:25, 3:43, 3:44, 3:45, 4:41 18 Pa.C.S.A. 901 ...................................................................................... 2:25, 3:43, 3:44, 3:45, 4:41
18 Pa.C.S.A. 901(b) .............................................................................................................................. 5:26 18 Pa.C.S.A. 901(b) .............................................................................................................................. 5:26
18 Pa.C.S.A. 902 ...................................................................................... 2:25, 3:43, 3:44, 3:45, 4:41 18 Pa.C.S.A. 902 ...................................................................................... 2:25, 3:43, 3:44, 3:45, 4:41
18 Pa.C.S.A. 903 ................................................................................................... 2:25, 3:43, 3:44, 4:41 18 Pa.C.S.A. 903 ................................................................................................... 2:25, 3:43, 3:44, 4:41
18 Pa.C.S.A. 905 ..................................................................................................................................... 4:42 18 Pa.C.S.A. 905 ..................................................................................................................................... 4:42
18 Pa.C.S.A. 905(a) ................................................................................................................... 3:45, 9:43 18 Pa.C.S.A. 905(a) ................................................................................................................... 3:45, 9:43
18 Pa.C.S.A. 905(b) .............................................................................................................................. 3:45 18 Pa.C.S.A. 905(b) .............................................................................................................................. 3:45
18 Pa.C.S.A. 1101 ..................................................... 3:16, 3:26, 4:14, 4:16, 4:18, 4:19,4: 22-25, 18 Pa.C.S.A. 1101 ..................................................... 3:16, 3:26, 4:14, 4:16, 4:18, 4:19,4: 22-25,
.................................................. 4:29, 4:30, 4:33, 4:34, 4:35, 4:37, 4:38, 9:30 .................................................. 4:29, 4:30, 4:33, 4:34, 4:35, 4:37, 4:38, 9:30
18 Pa.C.S.A. 1103 ..... 3:16,3: 26, 4:14, 4:18, 4:22-25, 4:29,4: 30, 4: 33, 4:34,4: 35, 9:30 18 Pa.C.S.A. 1103 ..... 3:16,3: 26, 4:14, 4:18, 4:22-25, 4:29,4: 30, 4: 33, 4:34,4: 35, 9:30
18 Pa.C.S.A. 1104 ................................................... 4:14,4:16, 4:18,4: 33,4: 34,4: 37, 4:38, 9:31 18 Pa.C.S.A. 1104 ................................................... 4:14,4:16, 4:18,4: 33,4: 34,4: 37, 4:38, 9:31
18 Pa.C.S.A. 1105 ......................................................................................................... 4:18, 4: 37, 9:31 18 Pa.C.S.A. 1105 ......................................................................................................... 4:18, 4: 37, 9:31
18 Pa.C.S.A. 2301 ...................................................................................................................... 2:17, 3:15 18 Pa.C.S.A. 2301 ...................................................................................................................... 2:17, 3:15
18 Pa.C.S.A. 2901 ................................................................................................................................. 9:21 18 Pa.C.S.A. 2901 ................................................................................................................................. 9:21
18 Pa.C.S.A. 2901(a.1) .................................................................................................................... 11:19 18 Pa.C.S.A. 2901(a.1) .................................................................................................................... 11:19
18 Pa.C.S.A. 2902(b) ............................................................................................................ 9:20. 11:17 18 Pa.C.S.A. 2902(b) ............................................................................................................ 9:20. 11:17
18 Pa.C.S.A. 2903(b) ........................................................................................................................ 11:17 18 Pa.C.S.A. 2903(b) ........................................................................................................................ 11:17
18 Pa.C.S.A. 2904 ................................................................................................................... 9:20, 11:17 18 Pa.C.S.A. 2904 ................................................................................................................... 9:20, 11:17
18 Pa.C.S.A. 2908 .................................................................................................................................... 4:6 18 Pa.C.S.A. 2908 .................................................................................................................................... 4:6
18 Pa.C.S.A 2910 ............................................... 1:4; 2:29, 4:5,4:6,4:8, 8:27, 9:20, 9:42, 11:18 18 Pa.C.S.A 2910 ............................................... 1:4; 2:29, 4:5,4:6,4:8, 8:27, 9:20, 9:42, 11:18
18 Pa.C.S.A. 3002 ...................................................................................................................... 3:17, 3:26 18 Pa.C.S.A. 3002 ...................................................................................................................... 3:17, 3:26
18 Pa.C.S.A. 3002(a) ............................................................................................................... 3:17, 3:26 18 Pa.C.S.A. 3002(a) ............................................................................................................... 3:17, 3:26
18 Pa.C.S.A. 3101 .............. 2:3, 3:9, 2:10, 2:11, 2:15, 2:19, 2:20, 2:17, 3:39, 4:17, 4:22-25 18 Pa.C.S.A. 3101 .............. 2:3, 3:9, 2:10, 2:11, 2:15, 2:19, 2:20, 2:17, 3:39, 4:17, 4:22-25
18 Pa.C.S.A. 3102 ............................................................................ 3:14, 3:15, 3:19, 3:25, 5:37-38 18 Pa.C.S.A. 3102 ............................................................................ 3:14, 3:15, 3:19, 3:25, 5:37-38
R-49 R-49
18 Pa.C.S.A. 3104 .................................................................................. 5:15, 5:21, 6:45, 7:17, 10:7 18 Pa.C.S.A. 3104 .................................................................................. 5:15, 5:21, 6:45, 7:17, 10:7
18 Pa.C.S.A. 3104(a) ........................................................................... 2:4-5, 5:15; 5:21, 6:45, 7:18 18 Pa.C.S.A. 3104(a) ........................................................................... 2:4-5, 5:15; 5:21, 6:45, 7:18
18 Pa.C.S.A. 3104(b) ............................................................................ 5:15; 5:21, 6:45, 7:17, 7:18 18 Pa.C.S.A. 3104(b) ............................................................................ 5:15; 5:21, 6:45, 7:17, 7:18
18 Pa.C.S.A. 3105 ............................................................................................................. 2:6, 7:33, 7:34 18 Pa.C.S.A. 3105 ............................................................................................................. 2:6, 7:33, 7:34
18 Pa.C.S.A. 3106 ........................................................................................................ 2:3-4, 7:10, 7:16 18 Pa.C.S.A. 3106 ........................................................................................................ 2:3-4, 7:10, 7:16
18 Pa.C.S.A. 3107 ......................................................................................... 2:14-15, 3:16, 5:14, 7:38 18 Pa.C.S.A. 3107 ......................................................................................... 2:14-15, 3:16, 5:14, 7:38
18 Pa.C.S.A. 3121 .....................................1:4, 1:7; 2:25, 3:9, 3:11, 3:17, 3:26, 4:5, 5:14, 5:17, 18 Pa.C.S.A. 3121 .....................................1:4, 1:7; 2:25, 3:9, 3:11, 3:17, 3:26, 4:5, 5:14, 5:17,
..................... 5:40, 6:24, 7:22, 7:38, 8:7, 9:21, 9:33, 11:17, 11:19, 11:41 ..................... 5:40, 6:24, 7:22, 7:38, 8:7, 9:21, 9:33, 11:17, 11:19, 11:41
18 Pa.C.S.A. 3121(a) ............................................................................................................................ 3:16 18 Pa.C.S.A. 3121(a) ............................................................................................................................ 3:16
18 Pa.C.S.A. 3121(a)(1) ..................................................................................................... 1:5, 3:8, 3:9 18 Pa.C.S.A. 3121(a)(1) ..................................................................................................... 1:5, 3:8, 3:9
18 Pa.C.S.A. 3121(a)(2) ................................................................................................... 1:5, 3:8, 3:11 18 Pa.C.S.A. 3121(a)(2) ................................................................................................... 1:5, 3:8, 3:11
18 Pa.C.S.A. 3121(a)(3) ................................................................................................... 1:6, 3:8, 3:12 18 Pa.C.S.A. 3121(a)(3) ................................................................................................... 1:6, 3:8, 3:12
18 Pa.C.S.A. 3121(a)(4) ................................................................................................... 1:6, 3:8, 3:13 18 Pa.C.S.A. 3121(a)(4) ................................................................................................... 1:6, 3:8, 3:13
18 Pa.C.S.A. 3121(a)(5) .................................................................................................... 1:5, 3:8, 3:13 18 Pa.C.S.A. 3121(a)(5) .................................................................................................... 1:5, 3:8, 3:13
18 Pa.C.S.A. 3121(b) ........................................................................................................................... 3:16 18 Pa.C.S.A. 3121(b) ........................................................................................................................... 3:16
18 Pa.C.S.A. 3121(c) ....................................................................... 1:5, 2:29, 3:8, 3:13, 3:16, 5:16 18 Pa.C.S.A. 3121(c) ....................................................................... 1:5, 2:29, 3:8, 3:13, 3:16, 5:16
18 Pa.C.S.A. 3121(d) ...................................................................... 1:8, 2:29, 3:9, 3:14, 3:17, 5:16 18 Pa.C.S.A. 3121(d) ...................................................................... 1:8, 2:29, 3:9, 3:14, 3:17, 5:16
18 Pa.C.S.A. 3121(e) ............................................................................................................................... 1:8 18 Pa.C.S.A. 3121(e) ............................................................................................................................... 1:8
18 Pa.C.S.A. 3121(e)(1) ..................................................................................................................... 3:16 18 Pa.C.S.A. 3121(e)(1) ..................................................................................................................... 3:16
18 Pa.C.S.A. 3121(e)(2) ..................................................................................................................... 3:17 18 Pa.C.S.A. 3121(e)(2) ..................................................................................................................... 3:17
18 Pa.C.S.A. 3121(4) ........................................................................................................................... 3:24 18 Pa.C.S.A. 3121(4) ........................................................................................................................... 3:24
18 Pa.C.S.A. 3122 ..................................................................................................................................... 4:5 18 Pa.C.S.A. 3122 ..................................................................................................................................... 4:5
18 Pa.C.S.A 3122(a) ...................................................................................................................... 2:29-30 18 Pa.C.S.A 3122(a) ...................................................................................................................... 2:29-30
18 Pa.C.S.A 3122(b) ............................................................................................................................ 2:30 18 Pa.C.S.A 3122(b) ............................................................................................................................ 2:30
18 Pa.C.S.A. 3122.1 ............................................................. 1:4, 1:5, 3:19, 5:17, 5:40, 6:24, 7:22, 18 Pa.C.S.A. 3122.1 ............................................................. 1:4, 1:5, 3:19, 5:17, 5:40, 6:24, 7:22,
................................................................ 8:7, 9:20, 9:21, 9:33, 11:18, 11:19 ................................................................ 8:7, 9:20, 9:21, 9:33, 11:18, 11:19
18 Pa.C.S.A. 3122.1(a) ........................................................................................................................ 3:18 18 Pa.C.S.A. 3122.1(a) ........................................................................................................................ 3:18
R-50 R-50
18 Pa.C.S.A. 3122.1(b) ........................................................................................................................ 3:18 18 Pa.C.S.A. 3122.1(b) ........................................................................................................................ 3:18
18 Pa.C.S.A. 3123 ............................................ 1:4, 1:8-9; 2:9, 2:25, 3:17, 3:26, 4:5, 5:40, 6:24, 18 Pa.C.S.A. 3123 ............................................ 1:4, 1:8-9; 2:9, 2:25, 3:17, 3:26, 4:5, 5:40, 6:24,
............................................ 7:22, 8:7, 9:21, 9:33, 9:34, 11:17, 11:19, 11:41 ............................................ 7:22, 8:7, 9:21, 9:33, 9:34, 11:17, 11:19, 11:41
18 Pa.C.S.A. 3123(a) ............................................................................................................................ 3:26 18 Pa.C.S.A. 3123(a) ............................................................................................................................ 3:26
18 Pa.C.S.A. 3123(a)(1) .......................................................................................................... 3:20, 3:21 18 Pa.C.S.A. 3123(a)(1) .......................................................................................................... 3:20, 3:21
18 Pa.C.S.A. 3123(a)(2) .......................................................................................................... 3:20, 3:22 18 Pa.C.S.A. 3123(a)(2) .......................................................................................................... 3:20, 3:22
18 Pa.C.S.A. 3123(a)(3) ......................................................................................................... 3:20, 3:23 18 Pa.C.S.A. 3123(a)(3) ......................................................................................................... 3:20, 3:23
18 Pa.C.S.A. 3123(a)(4) .......................................................................................................... 3:20, 3:23 18 Pa.C.S.A. 3123(a)(4) .......................................................................................................... 3:20, 3:23
18 Pa.C.S.A. 3123(a)(5) .......................................................................................................... 3:21, 3:23 18 Pa.C.S.A. 3123(a)(5) .......................................................................................................... 3:21, 3:23
18 Pa.C.S.A. 3123(a)(7) ................................................................................. 2:30, 3:21, 3:24, 5:17 18 Pa.C.S.A. 3123(a)(7) ................................................................................. 2:30, 3:21, 3:24, 5:17
18 Pa.C.S.A. 3123(b) ....................................................................................... 2:30, 3:21, 3:24, 5:16 18 Pa.C.S.A. 3123(b) ....................................................................................... 2:30, 3:21, 3:24, 5:16
18 Pa.C.S.A. 3123(c) .................................................................................................... 2:30, 3:21, 3:25 18 Pa.C.S.A. 3123(c) .................................................................................................... 2:30, 3:21, 3:25
18 Pa.C.S.A. 3123(d)(1) ..................................................................................................................... 3:26 18 Pa.C.S.A. 3123(d)(1) ..................................................................................................................... 3:26
18 Pa.C.S.A. 3123(d)(2) ..................................................................................................................... 3:26 18 Pa.C.S.A. 3123(d)(2) ..................................................................................................................... 3:26
18 Pa.C.S.A. 3124.1 ............................................. 1:4, 1:5, 1:8, 3:27, 5:14, 5:40-41, 6:24, 7:22, 18 Pa.C.S.A. 3124.1 ............................................. 1:4, 1:5, 1:8, 3:27, 5:14, 5:40-41, 6:24, 7:22,
........................................... 7:37, 7:38, 7:39, 8:8, 9:21, 9:34, 11:19, 11:41 ........................................... 7:37, 7:38, 7:39, 8:8, 9:21, 9:34, 11:19, 11:41
18 Pa.C.S.A. 3124.2 ................. 3:28, 5:40, 7:22, 8:8, 9:20, 9:21, 9:34, 9:35, 11:18, 11:19 18 Pa.C.S.A. 3124.2 ................. 3:28, 5:40, 7:22, 8:8, 9:20, 9:21, 9:34, 9:35, 11:18, 11:19
18 Pa.C.S.A. 3124.2(a) ............................................................................................................. 3:28, 9:20 18 Pa.C.S.A. 3124.2(a) ............................................................................................................. 3:28, 9:20
18 Pa.C.S.A. 3124.2(a.1) ................................................................................................. 2:30-31, 3:29 18 Pa.C.S.A. 3124.2(a.1) ................................................................................................. 2:30-31, 3:29
18 Pa.C.S.A. 3124.2(a.2) ........................................................................................................ 2:31, 3:29 18 Pa.C.S.A. 3124.2(a.2) ........................................................................................................ 2:31, 3:29
18 Pa.C.S.A. 3124.2(a.3) ...................................................................................................... 2:31, 3:30 18 Pa.C.S.A. 3124.2(a.3) ...................................................................................................... 2:31, 3:30
18 Pa.C.S.A. 3125 ............................................................ 2:25, 2:31, 5:14, 5:40, 6:24, 7:22, 8:8, 18 Pa.C.S.A. 3125 ............................................................ 2:25, 2:31, 5:14, 5:40, 6:24, 7:22, 8:8,
................................................................9:21, 9:35, 9:36, 11:17, 11:19, 11:41 ................................................................9:21, 9:35, 9:36, 11:17, 11:19, 11:41
18 Pa.C.S.A. 3125(a) ......................................................................................... 2:31, 3:30, 5:16, 5:17 18 Pa.C.S.A. 3125(a) ......................................................................................... 2:31, 3:30, 5:16, 5:17
18 Pa.C.S.A. 3125(b) ................................................................................................... 2:31, 3:31, 5:17 18 Pa.C.S.A. 3125(b) ................................................................................................... 2:31, 3:31, 5:17
18 Pa.C.S.A. 3126 ........................ 3:31, 5:40, 6:24, 7:22, 8:8, 8:27, 9:20, 9:36, 9:37, 11:41 18 Pa.C.S.A. 3126 ........................ 3:31, 5:40, 6:24, 7:22, 8:8, 8:27, 9:20, 9:36, 9:37, 11:41
18 Pa.C.S.A. 3126(a) .............................................................................................. 9:21, 11:18, 11:19 18 Pa.C.S.A. 3126(a) .............................................................................................. 9:21, 11:18, 11:19
R-51 R-51
18 Pa.C.S.A. 3126(a)(1) ..................................................................................................................... 3:32 18 Pa.C.S.A. 3126(a)(1) ..................................................................................................................... 3:32
18 Pa.C.S.A. 3126(a)(2) ..................................................................................................................... 3:33 18 Pa.C.S.A. 3126(a)(2) ..................................................................................................................... 3:33
18 Pa.C.S.A. 3126(a)(3) .................................................................................................................... 3:33 18 Pa.C.S.A. 3126(a)(3) .................................................................................................................... 3:33
18 Pa.C.S.A. 3126(a)(4) .................................................................................................................... 3:33 18 Pa.C.S.A. 3126(a)(4) .................................................................................................................... 3:33
18 Pa.C.S.A. 3126(a)(5) .................................................................................................................... 3:34 18 Pa.C.S.A. 3126(a)(5) .................................................................................................................... 3:34
18 Pa.C.S.A. 3126(a)(6) .................................................................................................................... 3:34 18 Pa.C.S.A. 3126(a)(6) .................................................................................................................... 3:34
18 Pa.C.S.A. 3126(a)(7) ............................................................................................. 2:31, 3:35, 5:16 18 Pa.C.S.A. 3126(a)(7) ............................................................................................. 2:31, 3:35, 5:16
18 Pa.C.S.A. 3126(a)(8) ...................................................................................... 2:31-32, 3:36, 5:17 18 Pa.C.S.A. 3126(a)(8) ...................................................................................... 2:31-32, 3:36, 5:17
18 Pa.C.S.A. 3127 .................................................................. 3:37, 5:40-41, 7:22, 8:8, 9:37, 9:38 18 Pa.C.S.A. 3127 .................................................................. 3:37, 5:40-41, 7:22, 8:8, 9:37, 9:38
18 Pa.C.S.A. 3129 ................................................................................................ 3:43, 7:22, 8:8, 9:38 18 Pa.C.S.A. 3129 ................................................................................................ 3:43, 7:22, 8:8, 9:38
18 Pa.C.S.A. 3124.3 ................................................................................................................... 9:42, 9:43 18 Pa.C.S.A. 3124.3 ................................................................................................................... 9:42, 9:43
18 Pa.C.S.A. 4302 ........................................................................... 5:40-41, 6:24, 9:15, 9:39, 11:41 18 Pa.C.S.A. 4302 ........................................................................... 5:40-41, 6:24, 9:15, 9:39, 11:41
18 Pa.C.S.A. 4302(a) ............................................................................................................................ 3:38 18 Pa.C.S.A. 4302(a) ............................................................................................................................ 3:38
18 Pa.C.S.A. 4302(b) ..................................................................................... 2:32, 3:40, 9:21, 11:19 18 Pa.C.S.A. 4302(b) ..................................................................................... 2:32, 3:40, 9:21, 11:19
18 Pa.C.S.A. 4303 ..................................................................................................................................... 1:4 18 Pa.C.S.A. 4303 ..................................................................................................................................... 1:4
18 Pa.C.S.A. 4304 ............................................ 2:29, 4:5, 4:8, 4:9, 4:14, 4:15, 5:41, 6:24, 9:42 18 Pa.C.S.A. 4304 ............................................ 2:29, 4:5, 4:8, 4:9, 4:14, 4:15, 5:41, 6:24, 9:42
18 Pa.C.S.A. 4915 .............................................................................................................................. 11:50 18 Pa.C.S.A. 4915 .............................................................................................................................. 11:50
18 Pa.C.S.A. 4915.1 ........................................................................................................... 11:23, 11:43 18 Pa.C.S.A. 4915.1 ........................................................................................................... 11:23, 11:43
18 Pa.C.S.A. 5902 ...................................................................................................................... 4:29, 9:20 18 Pa.C.S.A. 5902 ...................................................................................................................... 4:29, 9:20
18 Pa.C.S.A. 5902(b.1) ................................................................................................................... 11:18 18 Pa.C.S.A. 5902(b.1) ................................................................................................................... 11:18
18 Pa.C.S.A. 5902(c) .......................................................................................................................... 9:15 18 Pa.C.S.A. 5902(c) .......................................................................................................................... 9:15
18 Pa.C.S.A. 5903 .......................................................................................... 2:29, 4:5, 4:29, 4:32-36 18 Pa.C.S.A. 5903 .......................................................................................... 2:29, 4:5, 4:29, 4:32-36
18 Pa.C.S.A. 5903(a) .............................................................................................. 9:15, 9:20, 11:18 18 Pa.C.S.A. 5903(a) .............................................................................................. 9:15, 9:20, 11:18
18 Pa.C.S.A. 6301 ................................................. 2:29, 4:5, 4:16, 4:18, 4:21, 5:41, 6:24, 9:39 18 Pa.C.S.A. 6301 ................................................. 2:29, 4:5, 4:16, 4:18, 4:21, 5:41, 6:24, 9:39
18 Pa.C.S.A. 6301(a) ............................................................................................................. 9:20, 11:18 18 Pa.C.S.A. 6301(a) ............................................................................................................. 9:20, 11:18
18 Pa.C.S.A. 6312 .................................................... 1:4, 2:29, 4:5, 4:22, 4:23, 4:24, 4:26, 4:27, 18 Pa.C.S.A. 6312 .................................................... 1:4, 2:29, 4:5, 4:22, 4:23, 4:24, 4:26, 4:27,
................................................ 4:29, 4:37, 5:40, 6:24, 9:15, 9:21, 9:39, 9:40 ................................................ 4:29, 4:37, 5:40, 6:24, 9:15, 9:21, 9:39, 9:40
R-52 R-52
18 Pa.C.S.A. 6312(b) ............................................................................................................ 5:41, 11:18 18 Pa.C.S.A. 6312(b) ............................................................................................................ 5:41, 11:18
18 Pa.C.S.A. 6312(c) ....................................................................................................................... 11:18 18 Pa.C.S.A. 6312(c) ....................................................................................................................... 11:18
18 Pa.C.S.A. 6312(d) ............................................................................................................ 9:20, 11:18 18 Pa.C.S.A. 6312(d) ............................................................................................................ 9:20, 11:18
18 Pa.C.S.A. 6318 ..................................... 2:29, 4:5 ,4:28, 4:29, 4:30, 9:15, 9:21, 9:41, 11:18 18 Pa.C.S.A. 6318 ..................................... 2:29, 4:5 ,4:28, 4:29, 4:30, 9:15, 9:21, 9:41, 11:18
18 Pa.C.S.A. 6320 ............ 2:29, 4:5, 4:29, 4:30, 4:31, 5:41, 6:24, 9:15, 9:21, 9:41, 11:18 18 Pa.C.S.A. 6320 ............ 2:29, 4:5, 4:29, 4:30, 4:31, 5:41, 6:24, 9:15, 9:21, 9:41, 11:18
18 Pa.C.S.A. 6321 ......................................................................... 2:29, 4:5, 4:27, 4:37, 4:38, 4:39 18 Pa.C.S.A. 6321 ......................................................................... 2:29, 4:5, 4:27, 4:37, 4:38, 4:39
18 Pa.C.S.A. 7507.1 ................................................... 3:41, 3:43, 5:45, 9:20, 9:38, 11:18, 11:27 18 Pa.C.S.A. 7507.1 ................................................... 3:41, 3:43, 5:45, 9:20, 9:38, 11:18, 11:27
18 Pa.C.S.A. 7507.1(a)(1) ..................................................................................................... 3:41, 5:44 18 Pa.C.S.A. 7507.1(a)(1) ..................................................................................................... 3:41, 5:44
18 Pa.C.S.A. 7507.1(a)(2) ..................................................................................................... 3:42, 5:44 18 Pa.C.S.A. 7507.1(a)(2) ..................................................................................................... 3:42, 5:44
18 Pa.C.S.A. 7507.1(a)(3) ...................................................................................................... 3:42, 5: 44 18 Pa.C.S.A. 7507.1(a)(3) ...................................................................................................... 3:42, 5: 44
18 Pa.C.S.A. 7507.1(b) ............................................................................................................. 3:42, 3:43 18 Pa.C.S.A. 7507.1(b) ............................................................................................................. 3:42, 3:43
18 Pa.C.S.A. 7507.1(c) ........................................................................................................................ 5:45 18 Pa.C.S.A. 7507.1(c) ........................................................................................................................ 5:45
18 Pa.C.S.A. 7621 ......................................................................................................................... 4:5, 4:31 18 Pa.C.S.A. 7621 ......................................................................................................................... 4:5, 4:31
23 Pa.C.S.A. 1304 .................................................................................................................................. 3:39 23 Pa.C.S.A. 1304 .................................................................................................................................. 3:39
23 Pa.C.S.A. 6108(a) ........................................................................................................................... 6:23 23 Pa.C.S.A. 6108(a) ........................................................................................................................... 6:23
23 Pa.C.S.A. 6114(a) ........................................................................................................................... 6:23 23 Pa.C.S.A. 6114(a) ........................................................................................................................... 6:23
23 Pa.C.S.A. 6301 ............................................................................................................................. 7:109 23 Pa.C.S.A. 6301 ............................................................................................................................. 7:109
23 Pa.C.S.A. 6303 ................................................................................................................................. 6:60 23 Pa.C.S.A. 6303 ................................................................................................................................. 6:60
23 Pa.C.S.A. 6311 .................................................................................................................................. 7:96 23 Pa.C.S.A. 6311 .................................................................................................................................. 7:96
23 Pa.C.S.A. 6313 ................................................................................................................................. 6:62 23 Pa.C.S.A. 6313 ................................................................................................................................. 6:62
23 Pa.C.S.A. 6336(a) ................................................................................................................ 6:61, 6:62 23 Pa.C.S.A. 6336(a) ................................................................................................................ 6:61, 6:62
23 Pa.C.S.A. 6339 ................................................................................................................................. 6:57 23 Pa.C.S.A. 6339 ................................................................................................................................. 6:57
23 Pa.C.S.A. 6340 ........................................................................................................ 6:57, 6:58, 6:60 23 Pa.C.S.A. 6340 ........................................................................................................ 6:57, 6:58, 6:60
23 Pa.C.S.A. 6340(a) .................................................................................................... 6:57, 6:61, 6:63 23 Pa.C.S.A. 6340(a) .................................................................................................... 6:57, 6:61, 6:63
23 Pa.C.S.A. 6340(b) .......................................................................................................................... 6:62 23 Pa.C.S.A. 6340(b) .......................................................................................................................... 6:62
23 Pa.C.S.A. 6368 ................................................................................................................................. 6:57 23 Pa.C.S.A. 6368 ................................................................................................................................. 6:57
23 Pa.C.S.A. 6703(d) ......................................................................................................................... 6:23 23 Pa.C.S.A. 6703(d) ......................................................................................................................... 6:23
R-53 R-53
23 Pa.C.S.A. 6704 ................................................................................................................................. 6:22 23 Pa.C.S.A. 6704 ................................................................................................................................. 6:22
23 Pa.C.S.A. 6705 ................................................................................................................................. 6:22 23 Pa.C.S.A. 6705 ................................................................................................................................. 6:22
23 Pa.C.S.A. 6707 ...................................................................................................................... 6:22, 6:23 23 Pa.C.S.A. 6707 ...................................................................................................................... 6:22, 6:23
23 Pa.C.S.A. 6711 ................................................................................................................................. 6:23 23 Pa.C.S.A. 6711 ................................................................................................................................. 6:23
23 Pa.C.S.A. 6381(c) ........................................................................................................................ 7:109 23 Pa.C.S.A. 6381(c) ........................................................................................................................ 7:109
35 Pa.Stat. 521.8 ...................................................................................................................... 6:25, 6:26 35 Pa.Stat. 521.8 ...................................................................................................................... 6:25, 6:26
35 Pa.Stat. 521.15 ............................................................................................................................... 6:52 35 Pa.Stat. 521.15 ............................................................................................................................... 6:52
35 Pa.Stat. 7620.103 ......................................................................................................................... 6:24 35 Pa.Stat. 7620.103 ......................................................................................................................... 6:24
35 Pa.Stat. 7620.301 ........................................................................................................................ 6:24 35 Pa.Stat. 7620.301 ........................................................................................................................ 6:24
35 Pa.Stat. 7620.302 ......................................................................................................................... 6:24 35 Pa.Stat. 7620.302 ......................................................................................................................... 6:24
35 Pa.Stat. 7620.303 ........................................................................................................................ 6:24 35 Pa.Stat. 7620.303 ........................................................................................................................ 6:24
35 Pa.Stat. 7620.304 ......................................................................................................................... 6:24 35 Pa.Stat. 7620.304 ......................................................................................................................... 6:24
42 Pa.C.S.A. 62A03 ............................................................................................................................ 6:19 42 Pa.C.S.A. 62A03 ............................................................................................................................ 6:19
42 Pa.C.S.A. 62A05 ............................................................................................................................. 6:21 42 Pa.C.S.A. 62A05 ............................................................................................................................. 6:21
42 Pa.C.S.A. 62A06(a) ......................................................................................................................... 6:21 42 Pa.C.S.A. 62A06(a) ......................................................................................................................... 6:21
42 Pa.C.S.A. 62A06(b) ........................................................................................................................ 6:21 42 Pa.C.S.A. 62A06(b) ........................................................................................................................ 6:21
42 Pa.C.S.A.62A07 ............................................................................................................................... 6:21 42 Pa.C.S.A.62A07 ............................................................................................................................... 6:21
42 Pa.C.S.A. 62A13 .............................................................................................................................. 6:21 42 Pa.C.S.A. 62A13 .............................................................................................................................. 6:21
42 Pa.C.S.A. 702(b) ...................................................................................................... 6:44, 10.8, 10:9 42 Pa.C.S.A. 702(b) ...................................................................................................... 6:44, 10.8, 10:9
42 Pa.C.S.A. 702(c) ............................................................................................................................. 10:9 42 Pa.C.S.A. 702(c) ............................................................................................................................. 10:9
42 Pa.C.S.A. 742 .................................................................................................................................... 10:3 42 Pa.C.S.A. 742 .................................................................................................................................... 10:3
42 Pa.C.S.A. 2155(b) .......................................................................................................................... 9:53 42 Pa.C.S.A. 2155(b) .......................................................................................................................... 9:53
42 Pa.C.S.A. 5552(a) ............................................................................................................................ 5:40 42 Pa.C.S.A. 5552(a) ............................................................................................................................ 5:40
42 Pa.C.S.A. 5552(b.1) ....................................................................................................................... 5:40 42 Pa.C.S.A. 5552(b.1) ....................................................................................................................... 5:40
42 Pa.C.S.A. 5552(c)(3) ......................................................................................................... 5:41, 5:43 42 Pa.C.S.A. 5552(c)(3) ......................................................................................................... 5:41, 5:43
42 Pa.C.S.A. 5552(d) .......................................................................................................................... 5:43 42 Pa.C.S.A. 5552(d) .......................................................................................................................... 5:43
R-54 R-54
42 Pa.C.S.A. 5552(e) ........................................................................................................................... 5:44 42 Pa.C.S.A. 5552(e) ........................................................................................................................... 5:44
42 Pa.C.S.A. 5554 ......................................................................................................................... 5:42-43 42 Pa.C.S.A. 5554 ......................................................................................................................... 5:42-43
42 Pa.C.S.A. 5701 .................................................................................................................................... 6:5 42 Pa.C.S.A. 5701 .................................................................................................................................... 6:5
42 Pa.C.S.A. 5911 ............................................................................................................................... 7:88 42 Pa.C.S.A. 5911 ............................................................................................................................... 7:88
42 Pa.C.S.A. 5913 ..................................................................................................... 7:89, 7:106, 7:107 42 Pa.C.S.A. 5913 ..................................................................................................... 7:89, 7:106, 7:107
42 Pa.C.S.A. 5920 ................................................................. 7:20, 7:21, 7:23, 8:6, 8:6, 8:19, 8:20 42 Pa.C.S.A. 5920 ................................................................. 7:20, 7:21, 7:23, 8:6, 8:6, 8:19, 8:20
42 Pa.C.S.A. 5922 ................................................................................................................................ 7:88 42 Pa.C.S.A. 5922 ................................................................................................................................ 7:88
42 Pa.C.S.A. 5924 ................................................................................................................................. 7:88 42 Pa.C.S.A. 5924 ................................................................................................................................. 7:88
42 Pa.C.S.A. 5929 ............................................................................................................................... 6:51 42 Pa.C.S.A. 5929 ............................................................................................................................... 6:51
42 Pa.C.S.A. 5944 ..................................................................................................................... 6:52, 6:53 42 Pa.C.S.A. 5944 ..................................................................................................................... 6:52, 6:53
42 Pa.C.S.A. 5945.1 ................................................................................................................... 6:54, 6:55 42 Pa.C.S.A. 5945.1 ................................................................................................................... 6:54, 6:55
42 Pa.C.S.A. 5982 ................................................................................................................................. 2:32 42 Pa.C.S.A. 5982 ................................................................................................................................. 2:32
42 Pa.C.S.A. 5984.1 ...................................................................................................... 7:27, 7:28, 7:29 42 Pa.C.S.A. 5984.1 ...................................................................................................... 7:27, 7:28, 7:29
42 Pa.C.S.A. 5984.1(a) ............................................................................................................ 7:29, 7:30 42 Pa.C.S.A. 5984.1(a) ............................................................................................................ 7:29, 7:30
42 Pa.C.S.A. 5984.1(b) ........................................................................................................................ 7:31 42 Pa.C.S.A. 5984.1(b) ........................................................................................................................ 7:31
42 Pa.C.S.A. 5984.1(c) ........................................................................................................................ 7:31 42 Pa.C.S.A. 5984.1(c) ........................................................................................................................ 7:31
42 Pa.C.S.A. 5985 ................................................................................... 7:78, 7:80, 7:81, 7:82, 7:85 42 Pa.C.S.A. 5985 ................................................................................... 7:78, 7:80, 7:81, 7:82, 7:85
42 Pa.C.S.A. 5985(a) ................................................................................................................. 7:25, 7:26 42 Pa.C.S.A. 5985(a) ................................................................................................................. 7:25, 7:26
42 Pa.C.S.A. 5985(a.1) ................................................................................................ 7:27, 7:81, 7:82 42 Pa.C.S.A. 5985(a.1) ................................................................................................ 7:27, 7:81, 7:82
42 Pa.C.S.A. 5985(a.2) ........................................................................................................................ 7:27 42 Pa.C.S.A. 5985(a.2) ........................................................................................................................ 7:27
42 Pa.C.S.A. 5985.1 ................................................................................ 7:78, 7:80, 7:81, 7:82, 7:85 42 Pa.C.S.A. 5985.1 ................................................................................ 7:78, 7:80, 7:81, 7:82, 7:85
42 Pa.C.S.A. 5988 ................................................................................................ 2:3, 2:32, 2:33, 9:42 42 Pa.C.S.A. 5988 ................................................................................................ 2:3, 2:32, 2:33, 9:42
42 Pa.C.S.A. 5988(a.1) ........................................................................................................................ 2:32 42 Pa.C.S.A. 5988(a.1) ........................................................................................................................ 2:32
42 Pa.C.S.A. 5988(a.2) ........................................................................................................................ 2:33 42 Pa.C.S.A. 5988(a.2) ........................................................................................................................ 2:33
42 Pa.C.S.A. 6301 .................................................................................................................................. 2:22 42 Pa.C.S.A. 6301 .................................................................................................................................. 2:22
42 Pa.C.S.A. 6301(b) ........................................................................................................................... 2:22 42 Pa.C.S.A. 6301(b) ........................................................................................................................... 2:22
42 Pa.C.S.A. 6302 ........................................................................................................................... 2:22-25 42 Pa.C.S.A. 6302 ........................................................................................................................... 2:22-25
R-55 R-55
42 Pa.C.S.A. 6321 .................................................................................................................................. 2:22 42 Pa.C.S.A. 6321 .................................................................................................................................. 2:22
42 Pa.C.S.A. 6322 .................................................................................................................................. 2:22 42 Pa.C.S.A. 6322 .................................................................................................................................. 2:22
42 Pa.C.S.A. 6322(a) ..................................................................................................... 2:24, 2:25, 2:26 42 Pa.C.S.A. 6322(a) ..................................................................................................... 2:24, 2:25, 2:26
42 Pa.C.S.A. 6336 .................................................................................................................................. 1:28 42 Pa.C.S.A. 6336 .................................................................................................................................. 1:28
42 Pa.C.S.A. 6336(f) ............................................................................................................................ 1:30 42 Pa.C.S.A. 6336(f) ............................................................................................................................ 1:30
42 Pa.C.S.A. 6352 ............................................................................................................................... 11:22 42 Pa.C.S.A. 6352 ............................................................................................................................... 11:22
42 Pa.C.S.A. 6352(a) ............................................................................................................ 11:22, 11:23 42 Pa.C.S.A. 6352(a) ............................................................................................................ 11:22, 11:23
42 Pa.C.S.A. 6355(a) .......................................................................................................... 2:24, 2:26-28 42 Pa.C.S.A. 6355(a) .......................................................................................................... 2:24, 2:26-28
42 Pa.C.S.A. 6355(a) ............................................................................................................................ 2:26 42 Pa.C.S.A. 6355(a) ............................................................................................................................ 2:26
42 Pa.C.S.A. 6355(e) ............................................................................................................................ 2:24 42 Pa.C.S.A. 6355(e) ............................................................................................................................ 2:24
42 Pa.C.S.A. 6401.1 ........................................................................................................................... 11:22 42 Pa.C.S.A. 6401.1 ........................................................................................................................... 11:22
42 Pa.C.S.A. 6402 ............................................................................................................................... 11:20 42 Pa.C.S.A. 6402 ............................................................................................................................... 11:20
42 Pa.C.S.A. 6403 ............................................................................................................................... 11:30 42 Pa.C.S.A. 6403 ............................................................................................................................... 11:30
42 Pa.C.S.A. 6404.2 ............................................................................................................ 11:36, 11:51 42 Pa.C.S.A. 6404.2 ............................................................................................................ 11:36, 11:51
42 Pa.C.S.A 9543 ............................................................................................................................... 10:31 42 Pa.C.S.A 9543 ............................................................................................................................... 10:31
42 Pa.C.S.A 9543(a) ............................................................................................................ 10:29, 10:32 42 Pa.C.S.A 9543(a) ............................................................................................................ 10:29, 10:32
42 Pa.C.S.A 9543.1 .................................................................................................................... 8:28, 8:29 42 Pa.C.S.A 9543.1 .................................................................................................................... 8:28, 8:29
42 Pa.C.S.A 9545 ................................................................................................................................... 8:29 42 Pa.C.S.A 9545 ................................................................................................................................... 8:29
42 Pa.C.S.A 9545(b) ...................................................................................................................... 10:31 42 Pa.C.S.A 9545(b) ...................................................................................................................... 10:31
42 Pa.C.S.A 9711(h) ......................................................................................................................... 10:10 42 Pa.C.S.A 9711(h) ......................................................................................................................... 10:10
42 Pa.C.S.A. 9712 ............................................................................................................................... 9:44 42 Pa.C.S.A. 9712 ............................................................................................................................... 9:44
42 Pa.C.S.A. 9713 ................................................................................................................................ 9:45 42 Pa.C.S.A. 9713 ................................................................................................................................ 9:45
42 Pa.C.S.A. 9714 ................................................................................................................................ 9:45 42 Pa.C.S.A. 9714 ................................................................................................................................ 9:45
42 Pa.C.S.A. 9717 ............................................................................................................................... 9:47 42 Pa.C.S.A. 9717 ............................................................................................................................... 9:47
42 Pa.C.S.A. 9718 ...................................................................................................................... 9:47, 9:48 42 Pa.C.S.A. 9718 ...................................................................................................................... 9:47, 9:48
42 Pa.C.S.A. 9718.1 ................................................................................................................. 9:51, 9:52 42 Pa.C.S.A. 9718.1 ................................................................................................................. 9:51, 9:52
42 Pa.C.S.A. 9718.2 ............................................................................................................................. 9:48 42 Pa.C.S.A. 9718.2 ............................................................................................................................. 9:48
R-56 R-56
42 Pa.C.S.A. 9719 ................................................................................................................................. 9:50 42 Pa.C.S.A. 9719 ................................................................................................................................. 9:50
42 Pa.C.S.A. 9720.2 ....................................................................................................... 3:17, 3:26, 9:50 42 Pa.C.S.A. 9720.2 ....................................................................................................... 3:17, 3:26, 9:50
42 Pa.C.S.A. 9721 ....................................................................................................................... 9:28, 9:29 42 Pa.C.S.A. 9721 ....................................................................................................................... 9:28, 9:29
42 Pa.C.S.A. 9722 ............................................................................................................................... 9:57 42 Pa.C.S.A. 9722 ............................................................................................................................... 9:57
42 Pa.C.S.A. 9727 .................................................................................................................................. 5:33 42 Pa.C.S.A. 9727 .................................................................................................................................. 5:33
42 Pa.C.S.A. 9727(a) ............................................................................................................................ 5:33 42 Pa.C.S.A. 9727(a) ............................................................................................................................ 5:33
42 Pa.C.S.A. 9727(b) ........................................................................................................................... 5:33 42 Pa.C.S.A. 9727(b) ........................................................................................................................... 5:33
42 Pa.C.S.A. 9754 ..................................................................................................................... 9:58. 9:60 42 Pa.C.S.A. 9754 ..................................................................................................................... 9:58. 9:60
42 Pa.C.S.A. 9756 ................................................................................................................................. 9:32 42 Pa.C.S.A. 9756 ................................................................................................................................. 9:32
42 Pa.C.S.A 9781 .................................................................................................................. 10:27, 10:29 42 Pa.C.S.A 9781 .................................................................................................................. 10:27, 10:29
42 Pa.C.S.A 9781(a) ......................................................................................................................... 10:29 42 Pa.C.S.A 9781(a) ......................................................................................................................... 10:29
42 Pa.C.S.A 9781(b) ......................................................................................................................... 10:27 42 Pa.C.S.A 9781(b) ......................................................................................................................... 10:27
42 Pa.C.S.A. 9792 ............................................................................................................................... 11:44 42 Pa.C.S.A. 9792 ............................................................................................................................... 11:44
42 Pa.C.S.A. 9795.2 ........................................................................................................................... 11:44 42 Pa.C.S.A. 9795.2 ........................................................................................................................... 11:44
42 Pa.C.S.A. 9798.(a) .......................................................................................................... 11:44, 11:45 42 Pa.C.S.A. 9798.(a) .......................................................................................................... 11:44, 11:45
42 Pa.C.S.A. 9798.(c) ......................................................................................................................... 11:45 42 Pa.C.S.A. 9798.(c) ......................................................................................................................... 11:45
42 Pa.C.S.A. 9798.(d) ........................................................................................................................ 11:46 42 Pa.C.S.A. 9798.(d) ........................................................................................................................ 11:46
42 Pa.C.S.A. 9798.(e) ......................................................................................................................... 11:46 42 Pa.C.S.A. 9798.(e) ......................................................................................................................... 11:46
42 Pa.C.S.A. 9799.10 ........................................................................................................................... 9:17 42 Pa.C.S.A. 9799.10 ........................................................................................................................... 9:17
42 Pa.C.S.A. 9799.12 ............................................................... 9:18, 9:19, 9:22, 9:25, 11:7, 11:20 42 Pa.C.S.A. 9799.12 ............................................................... 9:18, 9:19, 9:22, 9:25, 11:7, 11:20
42 Pa.C.S.A. 9799.13 .............................................................................. 11:13, 11:20, 11:22, 11:51 42 Pa.C.S.A. 9799.13 .............................................................................. 11:13, 11:20, 11:22, 11:51
42 Pa.C.S.A. 9799.13(1) ................................................................................................................. 11:13 42 Pa.C.S.A. 9799.13(1) ................................................................................................................. 11:13
42 Pa.C.S.A. 9799.13(1.1) .............................................................................................................. 11:14 42 Pa.C.S.A. 9799.13(1.1) .............................................................................................................. 11:14
42 Pa.C.S.A. 9799.13(2) ................................................................................................................. 11:14 42 Pa.C.S.A. 9799.13(2) ................................................................................................................. 11:14
42 Pa.C.S.A. 9799.13(2.1) .............................................................................................................. 11:15 42 Pa.C.S.A. 9799.13(2.1) .............................................................................................................. 11:15
42 Pa.C.S.A. 9799.13(3) .................................................................................................................. 11:15 42 Pa.C.S.A. 9799.13(3) .................................................................................................................. 11:15
42 Pa.C.S.A. 9799.13(3.1) ................................................................................................ 11:14, 11:27 42 Pa.C.S.A. 9799.13(3.1) ................................................................................................ 11:14, 11:27
R-57 R-57
42 Pa.C.S.A. 9799.13(7) .................................................................................................................. 11:15 42 Pa.C.S.A. 9799.13(7) .................................................................................................................. 11:15
42 Pa.C.S.A. 9799.13(7.1) .................................................................................. 11:15, 11:21, 11:43 42 Pa.C.S.A. 9799.13(7.1) .................................................................................. 11:15, 11:21, 11:43
42 Pa.C.S.A. 9799.13(7.2) .............................................................................................................. 11:16 42 Pa.C.S.A. 9799.13(7.2) .............................................................................................................. 11:16
42 Pa.C.S.A. 9799.13(8) .................................................................................................................. 11:16 42 Pa.C.S.A. 9799.13(8) .................................................................................................................. 11:16
42 Pa.C.S.A. 9799.13(8.1) .............................................................................................................. 11:16 42 Pa.C.S.A. 9799.13(8.1) .............................................................................................................. 11:16
42 Pa.C.S.A. 9799.13(8.2) .............................................................................................................. 11:16 42 Pa.C.S.A. 9799.13(8.2) .............................................................................................................. 11:16
42 Pa.C.S.A. 9799.13(9) ................................................................................................................ 11:17 42 Pa.C.S.A. 9799.13(9) ................................................................................................................ 11:17
42 Pa.C.S.A. 9799.14 ........................................... 3:45, 4:8, 4:15, 4:21, 4:26, 4:30, 4:31, 4:41, 42 Pa.C.S.A. 9799.14 ........................................... 3:45, 4:8, 4:15, 4:21, 4:26, 4:30, 4:31, 4:41,
............................... 7:22, 8:7, 9:17, 9:18, 9:19, 9:22, 9:23, 9:25, 11:17 ............................... 7:22, 8:7, 9:17, 9:18, 9:19, 9:22, 9:23, 9:25, 11:17
42 Pa.C.S.A. 9799.14(b) ...................................................................................... 11:15, 11:20, 11:21 42 Pa.C.S.A. 9799.14(b) ...................................................................................... 11:15, 11:20, 11:21
42 Pa.C.S.A. 9799.14(c) ................................................................................................................... 11:20 42 Pa.C.S.A. 9799.14(c) ................................................................................................................... 11:20
42 Pa.C.S.A. 9799.14(d) .................................................................................................................. 11:20 42 Pa.C.S.A. 9799.14(d) .................................................................................................................. 11:20
42 Pa.C.S.A. 9799.15 ....................................................... 4:8, 4:21, 4: 26, 4:30, 4:31, 9:25, 9:26, 42 Pa.C.S.A. 9799.15 ....................................................... 4:8, 4:21, 4: 26, 4:30, 4:31, 9:25, 9:26,
.................................................. 11:13, 11:20, 11:22, 11:28, 11:36, 11:51 .................................................. 11:13, 11:20, 11:22, 11:28, 11:36, 11:51
42 Pa.C.S.A. 9799.15(a) ....................................................................... 11:13, 11:20, 11:21, 11:43 42 Pa.C.S.A. 9799.15(a) ....................................................................... 11:13, 11:20, 11:21, 11:43
42 Pa.C.S.A. 9799.15(b) ................................................................................................................. 11:22 42 Pa.C.S.A. 9799.15(b) ................................................................................................................. 11:22
42 Pa.C.S.A. 9799.15(c) ................................................................................................... 11:22, 11:23 42 Pa.C.S.A. 9799.15(c) ................................................................................................... 11:22, 11:23
42 Pa.C.S.A. 9799.15(e) ................................................................................................... 11:12, 11:21 42 Pa.C.S.A. 9799.15(e) ................................................................................................... 11:12, 11:21
42 Pa.C.S.A. 9799.15(f) .................................................................................................................. 11:21 42 Pa.C.S.A. 9799.15(f) .................................................................................................................. 11:21
42 Pa.C.S.A. 9799.15(g) ....................................................................... 11:21, 11:27, 11:33, 11:44 42 Pa.C.S.A. 9799.15(g) ....................................................................... 11:21, 11:27, 11:33, 11:44
42 Pa.C.S.A. 9799.15(h) ................................................................................................................. 11:21 42 Pa.C.S.A. 9799.15(h) ................................................................................................................. 11:21
42 Pa.C.S.A. 9799.15(i) ................................................................................................................... 11:21 42 Pa.C.S.A. 9799.15(i) ................................................................................................................... 11:21
42 Pa.C.S.A. 9799.15(j) .................................................................................................................. 11:22 42 Pa.C.S.A. 9799.15(j) .................................................................................................................. 11:22
42 Pa.C.S.A. 9799.16 ........................................................................................... 11:12, 11:13, 11:28 42 Pa.C.S.A. 9799.16 ........................................................................................... 11:12, 11:13, 11:28
42 Pa.C.S.A. 9799.16(b) ......................................................... 11:12, 11:31, 11:36, 11:43, 11:51 42 Pa.C.S.A. 9799.16(b) ......................................................... 11:12, 11:31, 11:36, 11:43, 11:51
42 Pa.C.S.A. 9799.16(c) ................................................................................................................. 11:36 42 Pa.C.S.A. 9799.16(c) ................................................................................................................. 11:36
42 Pa.C.S.A. 9799.17 ......................................................................................... 11:17, 11:20, 11:37 42 Pa.C.S.A. 9799.17 ......................................................................................... 11:17, 11:20, 11:37
R-58 R-58
42 Pa.C.S.A. 9799.18 .................................................................................................................... 11:28 42 Pa.C.S.A. 9799.18 .................................................................................................................... 11:28
42 Pa.C.S.A. 9799.19 .................. 11:13, 11:16, 11:22, 11:28, 11:34, 11:36, 11:43, 11:51 42 Pa.C.S.A. 9799.19 .................. 11:13, 11:16, 11:22, 11:28, 11:34, 11:36, 11:43, 11:51
42 Pa.C.S.A. 9799.19(b) ................................................................................................................ 11:29 42 Pa.C.S.A. 9799.19(b) ................................................................................................................ 11:29
42 Pa.C.S.A. 9799.19(b.1) ............................................................................................................ 11:30 42 Pa.C.S.A. 9799.19(b.1) ............................................................................................................ 11:30
42 Pa.C.S.A. 9799.19(c) ................................................................................................................ 11:29 42 Pa.C.S.A. 9799.19(c) ................................................................................................................ 11:29
42 Pa.C.S.A. 9799.19(d) ................................................................................................................. 11:30 42 Pa.C.S.A. 9799.19(d) ................................................................................................................. 11:30
42 Pa.C.S.A. 9799.19(e) ................................................................................................................ 11:31 42 Pa.C.S.A. 9799.19(e) ................................................................................................................ 11:31
42 Pa.C.S.A. 9799.19(e.1) .............................................................................................................. 11:29 42 Pa.C.S.A. 9799.19(e.1) .............................................................................................................. 11:29
42 Pa.C.S.A. 9799.19(e.2) ................................................................................................ 11:29, 11:30 42 Pa.C.S.A. 9799.19(e.2) ................................................................................................ 11:29, 11:30
42 Pa.C.S.A. 9799.19(f) .................................................................................................... 11:30, 11:31 42 Pa.C.S.A. 9799.19(f) .................................................................................................... 11:30, 11:31
42 Pa.C.S.A. 9799.19(g) ................................................................................................................ 11:14 42 Pa.C.S.A. 9799.19(g) ................................................................................................................ 11:14
42 Pa.C.S.A. 9799.19(h) ................................................................................................... 11:30, 11:31 42 Pa.C.S.A. 9799.19(h) ................................................................................................... 11:30, 11:31
42 Pa.C.S.A. 9799.19(i) .................................................................................................................. 11:31 42 Pa.C.S.A. 9799.19(i) .................................................................................................................. 11:31
42 Pa.C.S.A. 9799.19(j) .................................................................................................................. 11:13 42 Pa.C.S.A. 9799.19(j) .................................................................................................................. 11:13
42 Pa.C.S.A. 9799.20 ........................................................................................... 11:13, 11:28, 11:35 42 Pa.C.S.A. 9799.20 ........................................................................................... 11:13, 11:28, 11:35
42 Pa.C.S.A. 9799.21 ....................................................................................................................... 11:34 42 Pa.C.S.A. 9799.21 ....................................................................................................................... 11:34
42 Pa.C.S.A. 9799.22 ....................................................................................................................... 11:34 42 Pa.C.S.A. 9799.22 ....................................................................................................................... 11:34
42 Pa.C.S.A. 9799.22(a) ................................................................................................................. 11:34 42 Pa.C.S.A. 9799.22(a) ................................................................................................................. 11:34
42 Pa.C.S.A. 9799.22(b) ................................................................................................................. 11:34 42 Pa.C.S.A. 9799.22(b) ................................................................................................................. 11:34
42 Pa.C.S.A. 9799.22(c) ................................................................................................................. 11:34 42 Pa.C.S.A. 9799.22(c) ................................................................................................................. 11:34
42 Pa.C.S.A. 9799.22(d) ................................................................................................................ 11:34 42 Pa.C.S.A. 9799.22(d) ................................................................................................................ 11:34
42 Pa.C.S.A. 9799.23 ............................................................................................................ 9:26, 11:35 42 Pa.C.S.A. 9799.23 ............................................................................................................ 9:26, 11:35
42 Pa.C.S.A. 9799.24 ......................................................................................... 9:16, 9:22, 9:23, 9:25 42 Pa.C.S.A. 9799.24 ......................................................................................... 9:16, 9:22, 9:23, 9:25
42 Pa.C.S.A. 9799.24(a) ................................................................................................................ 11:38 42 Pa.C.S.A. 9799.24(a) ................................................................................................................ 11:38
42Pa.C.S.A. 9799.24(b) ............................................................................................ 9:18, 9:23, 11:41 42Pa.C.S.A. 9799.24(b) ............................................................................................ 9:18, 9:23, 11:41
42 Pa.C.S.A. 9799.24(c) ...................................................................................................... 9:23, 11:39 42 Pa.C.S.A. 9799.24(c) ...................................................................................................... 9:23, 11:39
42 Pa.C.S.A. 9799.24(d) ..................................................................................................... 9:18, 11:39 42 Pa.C.S.A. 9799.24(d) ..................................................................................................... 9:18, 11:39
R-59 R-59
42 Pa.C.S.A. 9799.24(d.1) ............................................................................................................. 11:39 42 Pa.C.S.A. 9799.24(d.1) ............................................................................................................. 11:39
42 Pa.C.S.A. 9799.24(e) ................................... 9:18, 9:24, 9:27, 11:20, 11:38, 11:40, 11:41 42 Pa.C.S.A. 9799.24(e) ................................... 9:18, 9:24, 9:27, 11:20, 11:38, 11:40, 11:41
42 Pa.C.S.A. 9799.24(f) ........................................................................................................ 9:24, 11:41 42 Pa.C.S.A. 9799.24(f) ........................................................................................................ 9:24, 11:41
42 Pa.C.S.A. 9799.24(g) ................................................................................................................ 11:41 42 Pa.C.S.A. 9799.24(g) ................................................................................................................ 11:41
42 Pa.C.S.A. 9799.24(h) ................................................................................................................ 11:41 42 Pa.C.S.A. 9799.24(h) ................................................................................................................ 11:41
42 Pa.C.S.A. 9799.25 .............................................................................. 11:13, 11:36, 11:43, 11:51 42 Pa.C.S.A. 9799.25 .............................................................................. 11:13, 11:36, 11:43, 11:51
42 Pa.C.S.A. 9799.25(a) ................................................................................................................. 11:51 42 Pa.C.S.A. 9799.25(a) ................................................................................................................. 11:51
42 Pa.C.S.A. 9799.26 ....................................................................................................................... 11:43 42 Pa.C.S.A. 9799.26 ....................................................................................................................... 11:43
42 Pa.C.S.A. 9799.26(a) ................................................................................................................. 11:44 42 Pa.C.S.A. 9799.26(a) ................................................................................................................. 11:44
42 Pa.C.S.A. 9799.26(b) ................................................................................................................. 11:44 42 Pa.C.S.A. 9799.26(b) ................................................................................................................. 11:44
42 Pa.C.S.A. 9799.27 ....................................................................................................................... 11:44 42 Pa.C.S.A. 9799.27 ....................................................................................................................... 11:44
42 Pa.C.S.A. 9799.27(b) ................................................................................................................. 11:50 42 Pa.C.S.A. 9799.27(b) ................................................................................................................. 11:50
42 Pa.C.S.A. 9799.28 .......................................................................................................... 11:46, 11:48 42 Pa.C.S.A. 9799.28 .......................................................................................................... 11:46, 11:48
42 Pa.C.S.A. 9799.31 ........................................................................................................................ 11:49 42 Pa.C.S.A. 9799.31 ........................................................................................................................ 11:49
42 Pa.C.S.A. 9799.35 .......................................................................................................................... 9:23 42 Pa.C.S.A. 9799.35 .......................................................................................................................... 9:23
42 Pa.C.S.A. 9799.36 ............................................................................... 9:25, 11:34, 11:36, 11:50 42 Pa.C.S.A. 9799.36 ............................................................................... 9:25, 11:34, 11:36, 11:50
42 Pa.C.S.A. 9799.36(a) .................................................................................................................. 11:50 42 Pa.C.S.A. 9799.36(a) .................................................................................................................. 11:50
42 Pa.C.S.A. 9799.36(b) .................................................................................................................. 11:50 42 Pa.C.S.A. 9799.36(b) .................................................................................................................. 11:50
42 Pa.C.S.A. 9799.36(c) ................................................................................................................... 11:50 42 Pa.C.S.A. 9799.36(c) ................................................................................................................... 11:50
42 Pa.C.S.A. 9799.37 ......................................................................................................... 11:44, 11:46 42 Pa.C.S.A. 9799.37 ......................................................................................................... 11:44, 11:46
42 Pa.C.S.A. 9799.39 ....................................................................................................................... 11:50 42 Pa.C.S.A. 9799.39 ....................................................................................................................... 11:50
42 Pa.C.S.A. 9799.40 ....................................................................................................................... 11:37 42 Pa.C.S.A. 9799.40 ....................................................................................................................... 11:37
42 Pa.C.S.A. 9802 ................................................................................................................................. 9:55 42 Pa.C.S.A. 9802 ................................................................................................................................. 9:55
42 Pa.C.S.A. 9804(a) ........................................................................................................................... 9:55 42 Pa.C.S.A. 9804(a) ........................................................................................................................... 9:55
44 Pa.C.S.A 2303 ...................................................................................................... 8:27, 11:51, 11:52 44 Pa.C.S.A 2303 ...................................................................................................... 8:27, 11:51, 11:52
44 Pa.C.S.A. 2311 .............................................................................................................................. 11:53 44 Pa.C.S.A. 2311 .............................................................................................................................. 11:53
44 Pa.C.S.A. 2314 .............................................................................................................................. 11:53 44 Pa.C.S.A. 2314 .............................................................................................................................. 11:53
R-60 R-60
44 Pa.C.S.A. 2315 .............................................................................................................................. 11:53 44 Pa.C.S.A. 2315 .............................................................................................................................. 11:53
44 Pa.C.S.A 2316 ........................................................................................................... 8:26, 8:27, 9:15 44 Pa.C.S.A 2316 ........................................................................................................... 8:26, 8:27, 9:15
44 Pa.C.S.A. 2316(d.1) .................................................................................................................... 11:53 44 Pa.C.S.A. 2316(d.1) .................................................................................................................... 11:53
44 Pa.C.S.A. 2318(a) ........................................................................................................................ 11:53 44 Pa.C.S.A. 2318(a) ........................................................................................................................ 11:53
44 Pa.C.S.A. 2319 .............................................................................................................................. 11:52 44 Pa.C.S.A. 2319 .............................................................................................................................. 11:52
44 Pa.C.S.A. 2321 .............................................................................................................................. 11:54 44 Pa.C.S.A. 2321 .............................................................................................................................. 11:54
44 Pa.C.S.A. 2331 .............................................................................................................................. 11:54 44 Pa.C.S.A. 2331 .............................................................................................................................. 11:54
44 Pa.C.S.A. 2332 .............................................................................................................................. 11:55 44 Pa.C.S.A. 2332 .............................................................................................................................. 11:55
50 Pa.Stat. 7402 ................................................................................................................................. 7:86 50 Pa.Stat. 7402 ................................................................................................................................. 7:86
50 Pa.Stat. 7402(d) .......................................................................................................................... 7:87 50 Pa.Stat. 7402(d) .......................................................................................................................... 7:87
New Jersey Statutes New Jersey Statutes

N.J.S.A. 2C:7-1 ........................................................................................................................................ 11:4 N.J.S.A. 2C:7-1 ........................................................................................................................................ 11:4
Pennsylvania Code Pennsylvania Code

55 Pa.Code 3490.4. ............................................................................................................................. 6:60 55 Pa.Code 3490.4. ............................................................................................................................. 6:60
204 Pa.Code 303.1 ........................................................................................................ 9:28, 9:29, 9:52 204 Pa.Code 303.1 ........................................................................................................ 9:28, 9:29, 9:52
204 Pa.Code 303.13 ........................................................................................................................... 9:52 204 Pa.Code 303.13 ........................................................................................................................... 9:52
204 Pa.Code 303.15 ........................................................................................................................... 9:54 204 Pa.Code 303.15 ........................................................................................................................... 9:54
204 Pa.Code 303.16a ........................................................................................................................ 9:54 204 Pa.Code 303.16a ........................................................................................................................ 9:54
204 Pa.Code 303.17a ........................................................................................................................ 9:54 204 Pa.Code 303.17a ........................................................................................................................ 9:54
204 Pa.Code 303.17b ........................................................................................................................ 9:54 204 Pa.Code 303.17b ........................................................................................................................ 9:54
Federal Rules of Evidence Federal Rules of Evidence
Fed.R.Evid. 413 ................................................................................................................................... 6:39 Fed.R.Evid. 413 ................................................................................................................................... 6:39
Fed.R.Evid. 414 .................................................................................................................................... 6:40 Fed.R.Evid. 414 .................................................................................................................................... 6:40
R-61 R-61
Pennsylvania Rules of Appellate Procedure Pennsylvania Rules of Appellate Procedure

Pa.R.A.P. 311 ....................................................................................................... 10:6, 10:7, 10:8, 10:9 Pa.R.A.P. 311 ....................................................................................................... 10:6, 10:7, 10:8, 10:9
Pa.R.A.P. 311(a) .................................................................................................................................... 6:44 Pa.R.A.P. 311(a) .................................................................................................................................... 6:44
Pa.R.A.P. 311(d) .................................................................................................................................... 6:44 Pa.R.A.P. 311(d) .................................................................................................................................... 6:44
Pa.R.A.P. 312 ......................................................................................................................................... 10:8 Pa.R.A.P. 312 ......................................................................................................................................... 10:8
Pa.R.A.P. 313 ...................................................................................................................................... 10:10 Pa.R.A.P. 313 ...................................................................................................................................... 10:10
Pa.R.A.P. 341 ........................................................................................................................................ 10:8 Pa.R.A.P. 341 ........................................................................................................................................ 10:8
Pa.R.A.P. 341(a) .................................................................................................................................... 10:3 Pa.R.A.P. 341(a) .................................................................................................................................... 10:3
Pa.R.A.P. 341(b) .................................................................................................................................... 10:4 Pa.R.A.P. 341(b) .................................................................................................................................... 10:4
Pa.R.A.P. 341(e) .................................................................................................................................... 10:5 Pa.R.A.P. 341(e) .................................................................................................................................... 10:5
Pa.R.A.P. 903 ........................................................................................................................................ 10:6 Pa.R.A.P. 903 ........................................................................................................................................ 10:6
Pa.R.A.P. 904 (e) ................................................................................................................................... 10:7 Pa.R.A.P. 904 (e) ................................................................................................................................... 10:7
Pa.R.A.P. 1311 ........................................................................................................................... 6:44, 10:8 Pa.R.A.P. 1311 ........................................................................................................................... 6:44, 10:8
Pa.R.A.P. 1312 ...................................................................................................................................... 10:8 Pa.R.A.P. 1312 ...................................................................................................................................... 10:8
Pa.R.A.P. 1513 ...................................................................................................................................... 10:9 Pa.R.A.P. 1513 ...................................................................................................................................... 10:9
Pa.R.A.P. 1762 ........................................................................................................................... 6:18, 6:19 Pa.R.A.P. 1762 ........................................................................................................................... 6:18, 6:19
Pa.R.A.P. 1911 ................................................................................................................................... 10:19 Pa.R.A.P. 1911 ................................................................................................................................... 10:19
Pa.R.A.P. 1925 ...................................................................................................................... 10:11, 10:12 Pa.R.A.P. 1925 ...................................................................................................................... 10:11, 10:12
Pa.R.A.P. 1925(a) ................................................................................................................ 10:17, 10:18 Pa.R.A.P. 1925(a) ................................................................................................................ 10:17, 10:18
Pa.R.A.P. 1925(b) ..................................................................................... 10:14, 10:15, 10:16, 10:17 Pa.R.A.P. 1925(b) ..................................................................................... 10:14, 10:15, 10:16, 10:17
Pa.R.A.P. 1925(c) ................................................................................................................. 10:16, 10:17 Pa.R.A.P. 1925(c) ................................................................................................................. 10:16, 10:17
Pa.R.A.P. 1931 ................................................................................................................................... 10:19 Pa.R.A.P. 1931 ................................................................................................................................... 10:19
Pa.R.A.P. 2119(f) ................................................................................................................ 10:26, 10:27 Pa.R.A.P. 2119(f) ................................................................................................................ 10:26, 10:27
Pennsylvania Rules of Criminal Procedure Pennsylvania Rules of Criminal Procedure

Pa.R.Crim.P. 230 .................................................................................................................................. 6:29 Pa.R.Crim.P. 230 .................................................................................................................................. 6:29
Pa.R.Crim.P. 520 ...................................................................................................................................... 6:6 Pa.R.Crim.P. 520 ...................................................................................................................................... 6:6
R-62 R-62
Pa.R.Crim.P. 520(A) ............................................................................................................................ 6:14 Pa.R.Crim.P. 520(A) ............................................................................................................................ 6:14
Pa.R.Crim.P. 521 ..................................................................................................................... 9:5, 9:6, 9:7 Pa.R.Crim.P. 521 ..................................................................................................................... 9:5, 9:6, 9:7
Pa.R.Crim.P. 521(B) ............................................................................................................................ 6:16 Pa.R.Crim.P. 521(B) ............................................................................................................................ 6:16
Pa.R.Crim.P. 521(C) ............................................................................................................................ 6:16 Pa.R.Crim.P. 521(C) ............................................................................................................................ 6:16
Pa.R.Crim.P. 521(D) ............................................................................................................................ 6:16 Pa.R.Crim.P. 521(D) ............................................................................................................................ 6:16
Pa.R.Crim.P. 523 ........................................................................................................ 6:9, 6:10, 9:7, 9:8 Pa.R.Crim.P. 523 ........................................................................................................ 6:9, 6:10, 9:7, 9:8
Pa.R.Crim.P. 524 ......................................................................................................................... 6:8, 6:10 Pa.R.Crim.P. 524 ......................................................................................................................... 6:8, 6:10
Pa.R.Crim.P. 524(C) ............................................................................................... 6:8, 6:9, 6:10, 6:11 Pa.R.Crim.P. 524(C) ............................................................................................... 6:8, 6:9, 6:10, 6:11
Pa.R.Crim.P. 526(A) .............................................................................................................................. 6:9 Pa.R.Crim.P. 526(A) .............................................................................................................................. 6:9
Pa.R.Crim.P. 527 .......................................................................................................................... 6:8, 6:11 Pa.R.Crim.P. 527 .......................................................................................................................... 6:8, 6:11
Pa.R.Crim.P. 528(B) ................................................................................................................... 6:9, 6:15 Pa.R.Crim.P. 528(B) ................................................................................................................... 6:9, 6:15
Pa.R.Crim.P. 536(A) ................................................................................................................. 6:16, 6:17 Pa.R.Crim.P. 536(A) ................................................................................................................. 6:16, 6:17
Pa.R.Crim.P. 540(F) ............................................................................................................................... 6:8 Pa.R.Crim.P. 540(F) ............................................................................................................................... 6:8
Pa.R.Crim.P. 540(H) .............................................................................................................................. 6:8 Pa.R.Crim.P. 540(H) .............................................................................................................................. 6:8
Pa.R.Crim.P. 560 ................................................................................................................................... 5:44 Pa.R.Crim.P. 560 ................................................................................................................................... 5:44
Pa.R.Crim.P. 567 ....................................................................................................................................... 5:7 Pa.R.Crim.P. 567 ....................................................................................................................................... 5:7
Pa.R.Crim.P. 567(A) .................................................................................................................. 5:6, 6:32 Pa.R.Crim.P. 567(A) .................................................................................................................. 5:6, 6:32
Pa.R.Crim.P. 567(B) ............................................................................................................................... 5:7 Pa.R.Crim.P. 567(B) ............................................................................................................................... 5:7
Pa.R.Crim.P. 567(G) .............................................................................................................................. 5:8 Pa.R.Crim.P. 567(G) .............................................................................................................................. 5:8
Pa.R.Crim.P. 573(B) ....................................................... 6:27, 6:28, 6:29, 6:30, 6:31, 6:32, 6:33 Pa.R.Crim.P. 573(B) ....................................................... 6:27, 6:28, 6:29, 6:30, 6:31, 6:32, 6:33
R-63 R-63
Pa.R.Crim.P. 573(E) ................................................................................................................. 6:33, 6:34 Pa.R.Crim.P. 573(E) ................................................................................................................. 6:33, 6:34
Pa.R.Crim.P. 573(F) ............................................................................................................................ 6:35 Pa.R.Crim.P. 573(F) ............................................................................................................................ 6:35
Pa.R.Crim.P. 573(G) ............................................................................................................................. 6:35 Pa.R.Crim.P. 573(G) ............................................................................................................................. 6:35
Pa.R.Crim.P. 578 ................................................................................................. 6:36, 6:41, 6:42, 6:43 Pa.R.Crim.P. 578 ................................................................................................. 6:36, 6:41, 6:42, 6:43
Pa.R.Crim.P. 581 .................................................................................................................................... 6:37 Pa.R.Crim.P. 581 .................................................................................................................................... 6:37
Pa.R.Crim.P. 581(E) ............................................................................................................................ 6:37 Pa.R.Crim.P. 581(E) ............................................................................................................................ 6:37
Pa.R.Crim.P. 581(F) ............................................................................................................................ 6:37 Pa.R.Crim.P. 581(F) ............................................................................................................................ 6:37
Pa.R.Crim.P. 581(G) ............................................................................................................................ 6:37 Pa.R.Crim.P. 581(G) ............................................................................................................................ 6:37
Pa.R.Crim.P. 581(H) ................................................................................................................. 6:37, 6:38 Pa.R.Crim.P. 581(H) ................................................................................................................. 6:37, 6:38
Pa.R.Crim.P. 581(I) ........................................................................................................................... 6:38 Pa.R.Crim.P. 581(I) ........................................................................................................................... 6:38
Pa.R.Crim.P. 581(J) ............................................................................................................................. 6:38 Pa.R.Crim.P. 581(J) ............................................................................................................................. 6:38
Pa.R.Crim.P. 582(A) ........................................................................................................................... 6:37 Pa.R.Crim.P. 582(A) ........................................................................................................................... 6:37
Pa.R.Crim.P. 582(B) .......................................................................................................................... 6:36 Pa.R.Crim.P. 582(B) .......................................................................................................................... 6:36
Pa.R.Crim.P. 583 ................................................................................................................................... 6:37 Pa.R.Crim.P. 583 ................................................................................................................................... 6:37
Pa.R.Crim.P. 584 .................................................................................................................................... 10:6 Pa.R.Crim.P. 584 .................................................................................................................................... 10:6
Pa.R.Crim.P. 584(B) ............................................................................................................................ 6:42 Pa.R.Crim.P. 584(B) ............................................................................................................................ 6:42
Pa.R.Crim.P. 600 ...................................................................................................... 6:6, 6:7, 6:11, 6:14 Pa.R.Crim.P. 600 ...................................................................................................... 6:6, 6:7, 6:11, 6:14
Pa.R.Crim.P. 600(D) ................................................................................................................... 6:7, 6:12 Pa.R.Crim.P. 600(D) ................................................................................................................... 6:7, 6:12
Pa.R.Crim.P. 600(E) ................................................................................................................. 6:6, 6:14 Pa.R.Crim.P. 600(E) ................................................................................................................. 6:6, 6:14
Pa.R.Crim.P. 606 ................................................................................................................... 10:21, 10:22 Pa.R.Crim.P. 606 ................................................................................................................... 10:21, 10:22
Pa.R.Crim.P. 607 ............................................................................................................................... 10:23 Pa.R.Crim.P. 607 ............................................................................................................................... 10:23
Pa.R.Crim.P. 634 .................................................................................................................. 7:8, 7:9, 7:10 Pa.R.Crim.P. 634 .................................................................................................................. 7:8, 7:9, 7:10
R-64 R-64
Pa.R.Crim.P. 647 ............................................................................................................................... 10:25 Pa.R.Crim.P. 647 ............................................................................................................................... 10:25
Pa.R.Crim.P. 702 ........................................................................................... 9:8, 9:9, 9:10, 9:11, 9:12 Pa.R.Crim.P. 702 ........................................................................................... 9:8, 9:9, 9:10, 9:11, 9:12
Pa.R.Crim.P. 703 ............................................................................................................ 9:9, 9:12, 9:13 Pa.R.Crim.P. 703 ............................................................................................................ 9:9, 9:12, 9:13
Pa.R.Crim.P. 704 ................................................................................................ 9:15, 9:16, 9:60, 9:61 Pa.R.Crim.P. 704 ................................................................................................ 9:15, 9:16, 9:60, 9:61
Pennsylvania Rules of Juvenile Court Procedure Pennsylvania Rules of Juvenile Court Procedure
Pa.R.J.C.P. 394 ........................................................................................................................................ 6:24 Pa.R.J.C.P. 394 ........................................................................................................................................ 6:24
Pennsylvania Rules of Evidence Pennsylvania Rules of Evidence

Pa.R.E. 403 .............................................................................................................................................. 7:48 Pa.R.E. 403 .............................................................................................................................................. 7:48
Pa.R.E. 404 ................................................. 6:38, 7:16, 7:39, 7:40, 7:46, 7:47, 7:48, 7:49, 7:51 Pa.R.E. 404 ................................................. 6:38, 7:16, 7:39, 7:40, 7:46, 7:47, 7:48, 7:49, 7:51
Pa.R.E. 601 ...................................................................................................................... 7:87, 7:88, 7:89 Pa.R.E. 601 ...................................................................................................................... 7:87, 7:88, 7:89
Pa.R.E. 608 ............................................................................................................................................. 7:16 Pa.R.E. 608 ............................................................................................................................................. 7:16
Pa.R.E. 613 ............................................................................................... 7:31, 7:32, 7:33, 7:34, 7:69 Pa.R.E. 613 ............................................................................................... 7:31, 7:32, 7:33, 7:34, 7:69
Pa.R.E. 702 .................................................................................................................................. 8:9, 8:11 Pa.R.E. 702 .................................................................................................................................. 8:9, 8:11
Pa.R.E. 703 .................................................................................................................................. 8:12, 8:13 Pa.R.E. 703 .................................................................................................................................. 8:12, 8:13
Pa.R.E. 704 ............................................................................................................................................. 8:14 Pa.R.E. 704 ............................................................................................................................................. 8:14
Pa.R.E. 705 ............................................................................................................................................. 8:12 Pa.R.E. 705 ............................................................................................................................................. 8:12
Pa.R.E. 801 .............................................................................................................................................. 7:52 Pa.R.E. 801 .............................................................................................................................................. 7:52
Pa.R.E. 802 ................................................................................................................................... 7:51, 7:52 Pa.R.E. 802 ................................................................................................................................... 7:51, 7:52
Pa.R.E. 803 ....................................................................... 7:53, 7:57, 7:58, 7:59, 7:60, 7:61, 7:62, Pa.R.E. 803 ....................................................................... 7:53, 7:57, 7:58, 7:59, 7:60, 7:61, 7:62,
.......................................................................7:63, 7:64, 7:65, 7:68, 7:69, 7:72, 7:100 .......................................................................7:63, 7:64, 7:65, 7:68, 7:69, 7:72, 7:100
Pa.R.E. 804 ........................................................................................................... 7:72, 7:73, 7:74, 7:75 Pa.R.E. 804 ........................................................................................................... 7:72, 7:73, 7:74, 7:75
Pa.R.E. 805 ............................................................................................................................................. 7:53 Pa.R.E. 805 ............................................................................................................................................. 7:53
Pa.R.E. 806 ............................................................................................................................................. 7:77 Pa.R.E. 806 ............................................................................................................................................. 7:77
Pa.R.E. 902 ............................................................................................................................................. 7:64 Pa.R.E. 902 ............................................................................................................................................. 7:64
R-65 R-65
Pennsylvania Suggested Standard Criminal Jury Instructions Pennsylvania Suggested Standard Criminal Jury Instructions
Pa.SSI (Crim) 4.11 ............................................................................................................................... 8:13 Pa.SSI (Crim) 4.11 ............................................................................................................................... 8:13
Pa.SSI (Crim) 4.13A ........................................................................................................................... 7:36 Pa.SSI (Crim) 4.13A ........................................................................................................................... 7:36
Pa.SSI (Crim) 5.01(a)(6) .......................................................................................................... 5:31-32 Pa.SSI (Crim) 5.01(a)(6) .......................................................................................................... 5:31-32
Pa.SSI (Crim) 8.308(c) ..................................................................................................................... 5:35 Pa.SSI (Crim) 8.308(c) ..................................................................................................................... 5:35
Pa.SSJI (Crim.) 15.46 ........................................................................................................................... 3:13 Pa.SSJI (Crim.) 15.46 ........................................................................................................................... 3:13
R-66 R-66
Subject Index Subject Index

* References are to Chapter and Page Number. * References are to Chapter and Page Number.
A A
AGE AGE
Age of Accused ........................................................................................................................... 2:22 Age of Accused ........................................................................................................................... 2:22
Age of Child Victim ..........................................................................................................2:28, 4:6 Age of Child Victim ..........................................................................................................2:28, 4:6
Mistake as to Age .............................3:14-15, 3:19, 3:24-26, 4:21-23, 4:26, 5:37, 7:92 Mistake as to Age .............................3:14-15, 3:19, 3:24-26, 4:21-23, 4:26, 5:37, 7:92
Mandatory Sentences Due to Age of Victim .................................................................. 9:48 Mandatory Sentences Due to Age of Victim .................................................................. 9:48
Presumptions Regarding Minors Age ............................................................................. 4:21 Presumptions Regarding Minors Age ............................................................................. 4:21
Proof of Age................................................................................................................................. 4:26 Proof of Age................................................................................................................................. 4:26
AGGRAVATED INDECENT ASSAULT AGGRAVATED INDECENT ASSAULT
Aggravated Indecent Assault, Generally ......................................................................... 3:30 Aggravated Indecent Assault, Generally ......................................................................... 3:30
Indecent Assault, Generally ................................................................................................. 3:31 Indecent Assault, Generally ................................................................................................. 3:31
Sex Offender Registration .................................................................................... 11:19, 11:41 Sex Offender Registration .................................................................................... 11:19, 11:41
Statutory Penalties .......................................................................................................3:31, 9:36 Statutory Penalties .......................................................................................................3:31, 9:36
AGGRAVATED INDECENT ASSAULT of a CHILD AGGRAVATED INDECENT ASSAULT of a CHILD
Statutory Penalties ...................................................................................................... 3:31, 9:36 Statutory Penalties ...................................................................................................... 3:31, 9:36
AIDS/HIV TESTING .......................................................................................................................... 6:24 AIDS/HIV TESTING .......................................................................................................................... 6:24
ALIBI ALIBI
Alibi, Generally ............................................................................................................................. 5:4 Alibi, Generally ............................................................................................................................. 5:4
Alibi Jury Instruction ................................................................................................................. 5:9 Alibi Jury Instruction ................................................................................................................. 5:9
Burden of Proof ............................................................................................................................ 5:8 Burden of Proof ............................................................................................................................ 5:8
Notice Requirement ................................................................................................................... 5:6 Notice Requirement ................................................................................................................... 5:6
APPEALABLE ORDERS APPEALABLE ORDERS
Appealable Orders, Generally ............................................................................................. 10:3 Appealable Orders, Generally ............................................................................................. 10:3
Appeals by the Commonwealth ......................................................................................... 10:5 Appeals by the Commonwealth ......................................................................................... 10:5
Collateral Orders.....................................................................................................................10:10 Collateral Orders.....................................................................................................................10:10
Final Orders ................................................................................................................................ 10:3 Final Orders ................................................................................................................................ 10:3
Interlocutory Appeal by Permission ................................................................................ 10:7 Interlocutory Appeal by Permission ................................................................................ 10:7
Interlocutory Orders Appealable as of Right................................................................ 10:5 Interlocutory Orders Appealable as of Right................................................................ 10:5
Burden of Proof ............................................................................................................................ 5:8 Burden of Proof ............................................................................................................................ 5:8
Notice Requirement ................................................................................................................... 5:6 Notice Requirement ................................................................................................................... 5:6
R-67 R-67
APPELLATE REVIEW APPELLATE REVIEW

Appellate Review, Generally ..............................................................................................10:20 Appellate Review, Generally ..............................................................................................10:20
Appellate Review of SVP Status ..............................................................................9:24, 9:27 Appellate Review of SVP Status ..............................................................................9:24, 9:27
Pa.R.A.P. 1925 ...........................................................................................................................10:11 Pa.R.A.P. 1925 ...........................................................................................................................10:11
Standards and Scope .............................................................................................................10:20 Standards and Scope .............................................................................................................10:20
ATTEMPT ATTEMPT
Attempt, Generally ........................................................................................................3:43, 4:41 Attempt, Generally ........................................................................................................3:43, 4:41
Sex Offender Registration ..........................................................................................3:45, 4:43 Sex Offender Registration ..........................................................................................3:45, 4:43
Statutory Penalties .................................................................................................................. 3:45 Statutory Penalties .................................................................................................................. 3:45
AUDIOTAPED EVIDENCE AUDIOTAPED EVIDENCE
911 Tapes & Other Audiotaped Evidence ...................................................................... 7:96 911 Tapes & Other Audiotaped Evidence ...................................................................... 7:96
Admissibility .............................................................................................................................. 7:97 Admissibility .............................................................................................................................. 7:97
Authentication .................................................................................................................... 7:97-98 Authentication .................................................................................................................... 7:97-98
Excited Utterances ................................................................................................................... 7:99 Excited Utterances ................................................................................................................... 7:99
Present Sense Impressions ................................................................................................7:100 Present Sense Impressions ................................................................................................7:100
B B
BAD ACTS OR OTHER WRONGS OR CRIMES BAD ACTS OR OTHER WRONGS OR CRIMES
Admissibility: Admissibility:
Admissibility, Generally ............................................................................................... 7:40 Admissibility, Generally ............................................................................................... 7:40
Common Scheme, Plan or Design ............................................................................ 7:44 Common Scheme, Plan or Design ............................................................................ 7:44
Impeachment ................................................................................................................... 7:42 Impeachment ................................................................................................................... 7:42
Mistake or Accident ....................................................................................................... 7:45 Mistake or Accident ....................................................................................................... 7:45
Motive ............................................................................................................................................ 7:46 Motive ............................................................................................................................................ 7:46
Natural History of the Case ........................................................................................ 7:41 Natural History of the Case ........................................................................................ 7:41
Res Gestae Exception .................................................................................................... 7:41 Res Gestae Exception .................................................................................................... 7:41
Threats Against Victim or Witness ................................................................................... 7:43 Threats Against Victim or Witness ................................................................................... 7:43
Use in Rebuttal ................................................................................................................. 7:47 Use in Rebuttal ................................................................................................................. 7:47
Prerequisite for Use......................................................................................................7:47, 7:48 Prerequisite for Use......................................................................................................7:47, 7:48
Prohibition Against Use of Prior Bad Acts/Criminal Activity ............................... 7:39 Prohibition Against Use of Prior Bad Acts/Criminal Activity ............................... 7:39
BAIL BAIL
Bail Conditions .......................................................................................................................... 6:10 Bail Conditions .......................................................................................................................... 6:10
Bail Generally ....................................................................................................................... 6:4, 9:2 Bail Generally ....................................................................................................................... 6:4, 9:2
Bail Following Guilt .........................................................................................................6:15, 9:2 Bail Following Guilt .........................................................................................................6:15, 9:2
Bail Following Sentencing ....................................................................................................... 9:5 Bail Following Sentencing ....................................................................................................... 9:5
R-68 R-68
Modification....................................................................................................................... 6:14; 9:7 Modification....................................................................................................................... 6:14; 9:7

BITE MARK EVIDENCE ................................................................................................................... 8:31 BITE MARK EVIDENCE ................................................................................................................... 8:31
BLOOD TYPING EVIDENCE.......................................................................................................... 8:34 BLOOD TYPING EVIDENCE.......................................................................................................... 8:34
C C
CHILD CHILD
Competency ......................................................................................................... 5:46, 7:13, 7:90 Competency ......................................................................................................... 5:46, 7:13, 7:90
Confidentiality of Minor Victims Names ....................................................................... 9:42 Confidentiality of Minor Victims Names ....................................................................... 9:42
Consent Not A Defense........................................................................................................... 3:25 Consent Not A Defense........................................................................................................... 3:25
Definition ........................................................................................................................................ 4:6 Definition ........................................................................................................................................ 4:6
Impeachment Minor Victim Prior Sexual Conduct ............................................. 7:17 Impeachment Minor Victim Prior Sexual Conduct ............................................. 7:17
Name of Child Prohibition Against Disclosure ......................................................... 2:32 Name of Child Prohibition Against Disclosure ......................................................... 2:32
Offenses Against Children, Generally ............................................................................... 2:28 Offenses Against Children, Generally ............................................................................... 2:28
Offenses Against Children: Offenses Against Children:
Aggravated Indecent Assault of a Child ........................................................3:31, 9:36 Aggravated Indecent Assault of a Child ........................................................3:31, 9:36
Corruption of Minors ...........................................................................................4:16, 9:39 Corruption of Minors ...........................................................................................4:16, 9:39
Display of Obscene Materials to Minors ................................................................. 4:32 Display of Obscene Materials to Minors ................................................................. 4:32
Endangering Welfare of Children ..............................................................................4:8, 9:42 Endangering Welfare of Children ..............................................................................4:8, 9:42
Incest of a Minor ...................................................................................................3:40, 9:39 Incest of a Minor ...................................................................................................3:40, 9:39
Indecent Assault of a Child Under 13...........................................................3:35, 9:37 Indecent Assault of a Child Under 13...........................................................3:35, 9:37
Indecent Assault of a Child Under 16...........................................................3:36, 9:36 Indecent Assault of a Child Under 16...........................................................3:36, 9:36
Institutional Sexual Assault of a Minor .......................................................3:29, 9:35 Institutional Sexual Assault of a Minor .......................................................3:29, 9:35
Institutional Sexual Assault at a School ......................................................3:29, 9:35 Institutional Sexual Assault at a School ......................................................3:29, 9:35
Institutional Sexual Assault Child Care ....................................................3:30, 9:35 Institutional Sexual Assault Child Care ....................................................3:30, 9:35
Involuntary Deviate Sexual Intercourse with a Child Under 16 ....3:24, 9:33-34 Involuntary Deviate Sexual Intercourse with a Child Under 16 ....3:24, 9:33-34
Involuntary Deviate Sexual Intercourse with a Child Under 13 ...........3:24, 9:34 Involuntary Deviate Sexual Intercourse with a Child Under 13 ...........3:24, 9:34
Involuntary Deviate Sexual Intercourse with a Child Under 13 Involuntary Deviate Sexual Intercourse with a Child Under 13
Resulting in Serious Bodily Injury .................................................................3:25, 9:34 Resulting in Serious Bodily Injury .................................................................3:25, 9:34
Luring A Child Into A Motor Vehicle or Structure......................................4:5, 9:42 Luring A Child Into A Motor Vehicle or Structure......................................4:5, 9:42
Manufacture of Obscene Materials in which a Minor is Depicted .............. 4:33 Manufacture of Obscene Materials in which a Minor is Depicted .............. 4:33
Obscene Materials ................................................................................................4:32, 4:34 Obscene Materials ................................................................................................4:32, 4:34
Rape of a Child .......................................................................................................3:13, 9:32 Rape of a Child .......................................................................................................3:13, 9:32
Rape of a Child Resulting in Serious Bodily Injury .................................3:14, 9:33 Rape of a Child Resulting in Serious Bodily Injury .................................3:14, 9:33
Sexual Abuse of Children ...................................................................................4:22, 9:39 Sexual Abuse of Children ...................................................................................4:22, 9:39
Solicitation of a Minor ................................................................................................... 4:43 Solicitation of a Minor ................................................................................................... 4:43
R-69 R-69
Statutory Sexual Assault ....................................................................................3:17, 9:33 Statutory Sexual Assault ....................................................................................3:17, 9:33
Sexual Exploitation of Children ......................................................................4:30, 9:41 Sexual Exploitation of Children ......................................................................4:30, 9:41
Unlawful Contact With Minor..........................................................................4:28, 9:41 Unlawful Contact With Minor..........................................................................4:28, 9:41
Prohibition of Disclosure of Name of Minor in Sexual Abuse Case ..................... 2:32 Prohibition of Disclosure of Name of Minor in Sexual Abuse Case ..................... 2:32
Prompt Complaint Minor Victim ............................................................................2:8, 7:36 Prompt Complaint Minor Victim ............................................................................2:8, 7:36
Solicitation of a Minor ............................................................................................................ 4:41 Solicitation of a Minor ............................................................................................................ 4:41
Statute of Limitations Minority Tolling Provision .................................................. 5:41 Statute of Limitations Minority Tolling Provision .................................................. 5:41
Taint ....................................................................................................................................5:46, 7:14 Taint ....................................................................................................................................5:46, 7:14
Tender Years Exception ......................................................................................................... 7:78 Tender Years Exception ......................................................................................................... 7:78
Testimony by Minor Victim/Witness: Testimony by Minor Victim/Witness:
By Contemporaneous Alternative Method .......................................................... 7:23 By Contemporaneous Alternative Method .......................................................... 7:23
By Recorded Testimony ............................................................................................... 7:27 By Recorded Testimony ............................................................................................... 7:27
Competency of Minor Complainant or Witness .....................................5:46, 7:13 Competency of Minor Complainant or Witness .....................................5:46, 7:13
Testimony, Generally ..................................................................................................... 7:10 Testimony, Generally ..................................................................................................... 7:10
Transmission of Sexually Explicit Images by Minor .................................................. 4:36 Transmission of Sexually Explicit Images by Minor .................................................. 4:36
CLOSING COURTROOM TO THE PUBLIC............................................................................ 7:12 CLOSING COURTROOM TO THE PUBLIC............................................................................ 7:12
COLLOQUY FOLLOWING GUILTY PLEA OR VERDICT ............................................... 9:64 COLLOQUY FOLLOWING GUILTY PLEA OR VERDICT ............................................... 9:64
COMPETENCY OF VICTIM/WITNESS COMPETENCY OF VICTIM/WITNESS
Competency, Generally............................................................................................2:6, 7:87-88 Competency, Generally............................................................................................2:6, 7:87-88
Competency of Minor Complainant or Witness ................................... 5:46, 7:13, 7:90 Competency of Minor Complainant or Witness ................................... 5:46, 7:13, 7:90
Taint ....................................................................................................................................5:46, 7:14 Taint ....................................................................................................................................5:46, 7:14
COMPLAINANT COMPLAINANT
Closed-Circuit Television ...................................................................................................... 7:27 Closed-Circuit Television ...................................................................................................... 7:27
Corroboration of Victims Testimony.................................................. 1:4, 2:4, 3:31, 7:10 Corroboration of Victims Testimony.................................................. 1:4, 2:4, 3:31, 7:10
Corroboration Through Circumstantial Medial Evidence ............................ 7:11 Corroboration Through Circumstantial Medial Evidence ............................ 7:11
Complainant, Generally .................................................................................................. 2:3, 2:6 Complainant, Generally .................................................................................................. 2:3, 2:6
Complainants Past Sexual Conduct w/ Defendant............................................. 2:5, 2:9 Complainants Past Sexual Conduct w/ Defendant............................................. 2:5, 2:9
Credibility ....................................................................................................................................... 2:3 Credibility ....................................................................................................................................... 2:3
Cross-examination by Pro Se Defendant ........................................................................ 7:19 Cross-examination by Pro Se Defendant ........................................................................ 7:19
Hypnotically Refreshed Testimony ............................................................................ 7:91-92 Hypnotically Refreshed Testimony ............................................................................ 7:91-92
Impeachment: Impeachment:
Based Upon Prior False Accusations ....................................................................... 5:24 Based Upon Prior False Accusations ....................................................................... 5:24
With Prior Sexual Conduct ...............................................................................5:21, 7:17 With Prior Sexual Conduct ...............................................................................5:21, 7:17
Rape Shield Law ....................................................................................................5:21, 6:44 Rape Shield Law ....................................................................................................5:21, 6:44
Reputation for Truth and Veracity ........................................................................... 7:16 Reputation for Truth and Veracity ........................................................................... 7:16
R-70 R-70
No Corroboration Required: No Corroboration Required:

Corroboration through Circumstantial Medial Evidence ............................... 7:11 Corroboration through Circumstantial Medial Evidence ............................... 7:11
No Corroboration Required, Generally...................................... 1:4, 2:4, 3:31, 7:10 No Corroboration Required, Generally...................................... 1:4, 2:4, 3:31, 7:10
Prompt Complaint Instruction ...................................................................................2:6, 7:35 Prompt Complaint Instruction ...................................................................................2:6, 7:35
Prompt Report .............................................................................................. 1:4, 1:16, 2:6, 7:31 Prompt Report .............................................................................................. 1:4, 1:16, 2:6, 7:31
Rape Shield Law: Rape Shield Law:
In-Camera Hearing .............................................................................................6:48, 7:17 In-Camera Hearing .............................................................................................6:48, 7:17
Rape Shield Law, Generally ...............................................1:4, 2:4, 5:21, 6:44, 7:17 Rape Shield Law, Generally ...............................................1:4, 2:4, 5:21, 6:44, 7:17
Testimony of Complainant ................................................................................................... 7:10 Testimony of Complainant ................................................................................................... 7:10
Victims Past Sexual Conduct........................................................................ 5:21, 6:44, 7:17 Victims Past Sexual Conduct........................................................................ 5:21, 6:44, 7:17
CONFRONTATION CLAUSE CONFRONTATION CLAUSE
Confrontation Clause, Generally .............5:23, 7:23, 7:27, 7:64, 7:81-82, 7:98, 8:13 Confrontation Clause, Generally .............5:23, 7:23, 7:27, 7:64, 7:81-82, 7:98, 8:13
Nontestimonial Statements ................................................................................................. 7:82 Nontestimonial Statements ................................................................................................. 7:82
Primary Purpose Test ............................................................................................................. 7:84 Primary Purpose Test ............................................................................................................. 7:84
Testimonial Evidence...................................................................................................7:82, 7:98 Testimonial Evidence...................................................................................................7:82, 7:98
CONSENT CONSENT
Burden of Proof ......................................................................................................................... 5:14 Burden of Proof ......................................................................................................................... 5:14
Consent Defense, Generally ......................................................................................3:10, 5:13 Consent Defense, Generally ......................................................................................3:10, 5:13
Consent Defense Inapplicable to Certain Offenses .......3:13, 3:18, 3:23, 3:25, 5:16 Consent Defense Inapplicable to Certain Offenses .......3:13, 3:18, 3:23, 3:25, 5:16
Mistake of Fact as to Consent ...................................................................................3:10, 5:36 Mistake of Fact as to Consent ...................................................................................3:10, 5:36
CONSPIRACY .................................................................................................................. 3:43, 4:41, 9:43 CONSPIRACY .................................................................................................................. 3:43, 4:41, 9:43
CORRUPTION OF MINORS CORRUPTION OF MINORS
Corruption of Minors, Generally ........................................................................................ 4:16 Corruption of Minors, Generally ........................................................................................ 4:16
Corruption of Minors, Sexual Conduct ............................................................................ 4:16 Corruption of Minors, Sexual Conduct ............................................................................ 4:16
Sex Offender Registration ..................................................................................................... 4:21 Sex Offender Registration ..................................................................................................... 4:21
Statutory Penalties ........................................................................................... 4:16, 4:18, 9:39 Statutory Penalties ........................................................................................... 4:16, 4:18, 9:39
D D
DEFENDANTS RIGHT OF SELF-REPRESENTATION DEFENDANTS RIGHT OF SELF-REPRESENTATION
Cross-examination of Victim by Pro Se Defendant .................................................... 7:19 Cross-examination of Victim by Pro Se Defendant .................................................... 7:19
DEFENSES DEFENSES
Alibi ................................................................................................................................................... 5:5 Alibi ................................................................................................................................................... 5:5
Consent ......................................................................................................................................... 5:13 Consent ......................................................................................................................................... 5:13
Due Process Claim of Pre-Arrest Delay ........................................................................... 5:45 Due Process Claim of Pre-Arrest Delay ........................................................................... 5:45
Duress ........................................................................................................................................... 5:18 Duress ........................................................................................................................................... 5:18
Impeachment of Complainant with Prior Sexual Conduct ..................................... 5:21 Impeachment of Complainant with Prior Sexual Conduct ..................................... 5:21
R-71 R-71
Impossibility............................................................................................................................... 5:26 Impossibility............................................................................................................................... 5:26

Insanity ......................................................................................................................................... 5:27 Insanity ......................................................................................................................................... 5:27
Intoxication ................................................................................................................................. 5:33 Intoxication ................................................................................................................................. 5:33
Mistake of Fact ........................................................................................................................... 5:36 Mistake of Fact ........................................................................................................................... 5:36
Statute of Limitations ............................................................................................................. 5:39 Statute of Limitations ............................................................................................................. 5:39
Taint ....................................................................................................................................5:46, 7:14 Taint ....................................................................................................................................5:46, 7:14
DEMONSTRATIVE EVIDENCE ..................................................................................................7:102 DEMONSTRATIVE EVIDENCE ..................................................................................................7:102
DEVIATE SEXUAL INTERCOURSE....................................................................................2:9, 3:20 DEVIATE SEXUAL INTERCOURSE....................................................................................2:9, 3:20
DISCOVERY DISCOVERY
Children & Youth Records ..................................................................................................... 6:57 Children & Youth Records ..................................................................................................... 6:57
Discovery, Generally ................................................................................................................ 6:26 Discovery, Generally ................................................................................................................ 6:26
Privileges ..................................................................................................................................... 6:50 Privileges ..................................................................................................................................... 6:50
DIGITAL PENETRATION ................................................................................................................ 3:31 DIGITAL PENETRATION ................................................................................................................ 3:31
DNA DNA
Admissibility ...................................................................................................................8:21, 8:25 Admissibility ...................................................................................................................8:21, 8:25
Combined DNA Index System (CODIS)......................................................................11:11.3 Combined DNA Index System (CODIS)......................................................................11:11.3
DNA, Generally.................................................................................................... 8:21, 8:13, 9:14 DNA, Generally.................................................................................................... 8:21, 8:13, 9:14
Identification through DNA testing .................................................................................. 8:21 Identification through DNA testing .................................................................................. 8:21
Pennsylvania DNA Detection of Sexual and Violent Offenders Act ....... 9:14, 11:52 Pennsylvania DNA Detection of Sexual and Violent Offenders Act ....... 9:14, 11:52
Post-Conviction Forensic DNA Testing: Post-Conviction Forensic DNA Testing:
Post-Conviction Forensic DNA Testing, Generally .......................................... 8:28 Post-Conviction Forensic DNA Testing, Generally .......................................... 8:28
Threshold Requirements .......................................................................................... 8:29 Threshold Requirements .......................................................................................... 8:29
Timeliness of Motion .................................................................................................. 8:29 Timeliness of Motion .................................................................................................. 8:29
Types of DNA Tests .................................................................................................................. 8:22 Types of DNA Tests .................................................................................................................. 8:22
DUE PROCESS CLAIM OF PRE-ARREST DELAY ............................................................. 5:45 DUE PROCESS CLAIM OF PRE-ARREST DELAY ............................................................. 5:45
DURESS ..................................................................................................................................................... 5:18 DURESS ..................................................................................................................................................... 5:18
E E
ENDANGERING WELFARE OF CHILDREN ENDANGERING WELFARE OF CHILDREN
Endangering Welfare of Children, Generally ................................................................... 4:8 Endangering Welfare of Children, Generally ................................................................... 4:8
Sex Offender Registration ..................................................................................................... 4:15 Sex Offender Registration ..................................................................................................... 4:15
Statutory Penalties .................................................................................................................. 4:14 Statutory Penalties .................................................................................................................. 4:14
EVIDENCE OF BLOOD TYPE........................................................................................................ 8:34 EVIDENCE OF BLOOD TYPE........................................................................................................ 8:34
EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS .................................................... 7:39 EVIDENCE OF OTHER CRIMES, WRONGS OR ACTS .................................................... 7:39
EVIDENCE OF PROMPT COMPLAINT ...........................................................................2:6, 7:31 EVIDENCE OF PROMPT COMPLAINT ...........................................................................2:6, 7:31
R-72 R-72
EX POST FACTO CONSIDERATIONS - SORNA ....................... 11:7, 11:23, 11:24, 11:27 EX POST FACTO CONSIDERATIONS - SORNA ....................... 11:7, 11:23, 11:24, 11:27
EXPERT TESTIMONY EXPERT TESTIMONY
Appellate Review ...................................................................................................................... 8:14 Appellate Review ...................................................................................................................... 8:14
Bite Mark Evidence.................................................................................................................. 8:31 Bite Mark Evidence.................................................................................................................. 8:31
Blood Typing Evidence .......................................................................................................... 8:34 Blood Typing Evidence .......................................................................................................... 8:34
By Medical Experts .................................................................................................................. 8:15 By Medical Experts .................................................................................................................. 8:15
By SANEs ...................................................................................................................................... 8:17 By SANEs ...................................................................................................................................... 8:17
By Mental Health Experts ..................................................................................................... 8:18 By Mental Health Experts ..................................................................................................... 8:18
DNA ................................................................................................................................................ 8:21 DNA ................................................................................................................................................ 8:21
Expert Testimony, Generally ................................................................................................... 8:9 Expert Testimony, Generally ................................................................................................... 8:9
Eyewitness Identification ..................................................................................................... 8:39 Eyewitness Identification ..................................................................................................... 8:39
False Confession........................................................................................................................ 8:37 False Confession........................................................................................................................ 8:37
Forensic Sexual Assault Evidence Collection................................................................ 8:35 Forensic Sexual Assault Evidence Collection................................................................ 8:35
Hair Sample Analysis .............................................................................................................. 8:32 Hair Sample Analysis .............................................................................................................. 8:32
Hypnotically Refreshed Testimony ................................................................................... 7:91 Hypnotically Refreshed Testimony ................................................................................... 7:91
Jury Instruction ......................................................................................................................... 8:13 Jury Instruction ......................................................................................................................... 8:13
Medical or Doctor Records .................................................................................7:63-64, 7:66 Medical or Doctor Records .................................................................................7:63-64, 7:66
Mental Disability............................................................................................................3:24, 3:37 Mental Disability............................................................................................................3:24, 3:37
Penetration Requirement ........................2:9, 2:10, 2:11, 2:19, 2:20, 3:16, 3:30, 3:31 Penetration Requirement ........................2:9, 2:10, 2:11, 2:19, 2:20, 3:16, 3:30, 3:31
Physical Condition of Victim................................................................................... 8:3-4, 8:19 Physical Condition of Victim................................................................................... 8:3-4, 8:19
Prohibition on Opinion Regarding Credibility ... 7:20, 7:23, 8:3, 8:8, 8:13, 8:17, 8:18 Prohibition on Opinion Regarding Credibility ... 7:20, 7:23, 8:3, 8:8, 8:13, 8:17, 8:18
Qualifications Victim Responses and Behaviors ................. 7:22, 8:7-8, 8:14, 8:18 Qualifications Victim Responses and Behaviors ................. 7:22, 8:7-8, 8:14, 8:18
Rape Kit: Rape Kit:
Objective Findings or Opinions .............................................................................. 8:37 Objective Findings or Opinions .............................................................................. 8:37
Rape Kit, Generally....................................................................................................... 8:34 Rape Kit, Generally....................................................................................................... 8:34
Rape Trauma Syndrome ...............................................................1:21, 3:10, 8:14, 8:19-20 Rape Trauma Syndrome ...............................................................1:21, 3:10, 8:14, 8:19-20
Sexual Assault Counselor Privilege .......................................................................6:53, 7:93 Sexual Assault Counselor Privilege .......................................................................6:53, 7:93
Sexual Assault Medical Forensic Exam ........................................................................... 8:35 Sexual Assault Medical Forensic Exam ........................................................................... 8:35
Specific Types of Victim Responses and Behaviors ...........................................8:5, 8:18 Specific Types of Victim Responses and Behaviors ...........................................8:5, 8:18
Victim Responses and Behaviors Victim Responses and Behaviors
42 Pa.Cons.Stat.Ann 5920 ..........................................................................7:20, 8:18 42 Pa.Cons.Stat.Ann 5920 ..........................................................................7:20, 8:18
Declared Unconstitutional ........................................................................................... 8:6 Declared Unconstitutional ........................................................................................... 8:6
F F
FORCIBLE COMPULSION...................................... 2:11, 3:9, 3:11, 3:21, 3:27, 3:32-33, 7:38 FORCIBLE COMPULSION...................................... 2:11, 3:9, 3:11, 3:21, 3:27, 3:32-33, 7:38
FORENSIC SEXUAL ASSAULT EVIDENCE COLLECTION ............................................ 8:35 FORENSIC SEXUAL ASSAULT EVIDENCE COLLECTION ............................................ 8:35
R-73 R-73
H H
HAIR SAMPLE ANALYSIS ............................................................................................................... 8:32 HAIR SAMPLE ANALYSIS ............................................................................................................... 8:32
HEARSAY HEARSAY
Availability of Declarant Immaterial ................................................................................ 7:53 Availability of Declarant Immaterial ................................................................................ 7:53
Availability of Declarant Necessary .................................................................................. 7:69 Availability of Declarant Necessary .................................................................................. 7:69
Declarant Unavailable: Declarant Unavailable:
Declarant Unavailable ............................................................................................... 7:72 Declarant Unavailable ............................................................................................... 7:72
Former Testimony ....................................................................................................... 7:73 Former Testimony ....................................................................................................... 7:73
Hearsay, Generally.................................................................................................................... 7:51 Hearsay, Generally.................................................................................................................... 7:51
Medical or Doctor Records .................................................................................7:63-64, 7:66 Medical or Doctor Records .................................................................................7:63-64, 7:66
Res Gestae Exception ............................................................................................7:41, 7:57-58 Res Gestae Exception ............................................................................................7:41, 7:57-58
Tender Years Exception See Tender Years Exception Tender Years Exception See Tender Years Exception
HUE AND CRY DOCTRINE..............................................................................................2:8, 7:33-34 HUE AND CRY DOCTRINE..............................................................................................2:8, 7:33-34
HUMAN IMMUNODEFICIENCY VIRUS (HIV) TESTING............................................. 6:24 HUMAN IMMUNODEFICIENCY VIRUS (HIV) TESTING............................................. 6:24
HYPNOTICALLY REFRESHED TESTIMONY ...................................................................... 7:91 HYPNOTICALLY REFRESHED TESTIMONY ...................................................................... 7:91
I I
IMPOSSIBILITY DEFENSE ............................................................................................................ 5:26 IMPOSSIBILITY DEFENSE ............................................................................................................ 5:26
INCEST INCEST
Incest, Generally ....................................................................................................................... 3:38 Incest, Generally ....................................................................................................................... 3:38
Incest of a Minor ....................................................................................................................... 3:40 Incest of a Minor ....................................................................................................................... 3:40
Sex Offender Registration .................................................................................................. 11:19 Sex Offender Registration .................................................................................................. 11:19
INCHOATE OFFFENSES................................................................................................................... 4:41 INCHOATE OFFFENSES................................................................................................................... 4:41
INDECENT ASSAULT INDECENT ASSAULT
Indecent Assault, Generally ................................................................................................. 3:31 Indecent Assault, Generally ................................................................................................. 3:31
Sex Offender Registration ...................................................................................................11:19 Sex Offender Registration ...................................................................................................11:19
Statutory Penalties .........................................................................................3:28-30, 9:36-37 Statutory Penalties .........................................................................................3:28-30, 9:36-37
INDECENT CONTACT ....................................................................................................................... 2:15 INDECENT CONTACT ....................................................................................................................... 2:15
INDECENT EXPOSURE INDECENT EXPOSURE
Indecent Exposure, Generally ............................................................................................. 3:37 Indecent Exposure, Generally ............................................................................................. 3:37
INSANITY DEFENSE INSANITY DEFENSE
Burden of Proof ......................................................................................................................... 5:28 Burden of Proof ......................................................................................................................... 5:28
R-74 R-74
Insanity Defense, Generally ................................................................................................. 5:27 Insanity Defense, Generally ................................................................................................. 5:27
MNaghten Test .......................................................................................................................... 5:29 MNaghten Test .......................................................................................................................... 5:29
INSTITUTIONAL SEXUAL ASSAULT INSTITUTIONAL SEXUAL ASSAULT
Institutional Sexual Assault, Generally ........................................................................... 3:28 Institutional Sexual Assault, Generally ........................................................................... 3:28
Sexual Assault, Generally ...................................................................................................... 3:27 Sexual Assault, Generally ...................................................................................................... 3:27
Statutory Penalties ................................................................................................3:28-30, 9:34 Statutory Penalties ................................................................................................3:28-30, 9:34
INTERNET SOLICITATION OF A MINOR INTERNET SOLICITATION OF A MINOR
Definitions ................................................................................................................................... 4:29 Definitions ................................................................................................................................... 4:29
Unlawful Contact (Communication) With A Minor, Generally .............................. 4:28 Unlawful Contact (Communication) With A Minor, Generally .............................. 4:28
INTERCOURSE see SEXUAL INTERCOURSE INTERCOURSE see SEXUAL INTERCOURSE
INTERNET CHILD PORNOGRAPHY ....................................................................................... 4:31 INTERNET CHILD PORNOGRAPHY ....................................................................................... 4:31
INTOXICATION ..................................................................................................................................... 5:33 INTOXICATION ..................................................................................................................................... 5:33
INVASION OF PRIVACY INVASION OF PRIVACY
Invasion of Privacy, Generally ............................................................................................. 3:41 Invasion of Privacy, Generally ............................................................................................. 3:41
INVOLUNTARY DEVIATE SEXUAL INTERCOURSE INVOLUNTARY DEVIATE SEXUAL INTERCOURSE
Assailant Has Impaired the Complainants Power to Resist .................................. 3:23 Assailant Has Impaired the Complainants Power to Resist .................................. 3:23
By Forcible Compulsion......................................................................................................... 3:21 By Forcible Compulsion......................................................................................................... 3:21
By Threat of Forcible Compulsion..................................................................................... 3:21 By Threat of Forcible Compulsion..................................................................................... 3:21
Complainant is Unconscious or Unaware ...................................................................... 3:23 Complainant is Unconscious or Unaware ...................................................................... 3:23
Involuntary Deviate Sexual Intercourse, Definition ..................................................... 1:8 Involuntary Deviate Sexual Intercourse, Definition ..................................................... 1:8
Involuntary Deviate Sexual Intercourse, Generally ................................................... 3:20 Involuntary Deviate Sexual Intercourse, Generally ................................................... 3:20
Mental Disability Renders the Complainant Incapable of Consent .................... 3:23 Mental Disability Renders the Complainant Incapable of Consent .................... 3:23
With a Child ................................................................................................................................ 3:24 With a Child ................................................................................................................................ 3:24
With a Child Resulting in Serious Bodily Injury .......................................................... 2:25 With a Child Resulting in Serious Bodily Injury .......................................................... 2:25
J J
JUROR INFORMATION QUESTIONNAIRE ........................................................................7:111 JUROR INFORMATION QUESTIONNAIRE ........................................................................7:111
JURY CHARGE .....................................................................................................................................7:114 JURY CHARGE .....................................................................................................................................7:114
JURY SELECTION JURY SELECTION
Jury Selection, Generally .......................................................................................................... 7:6 Jury Selection, Generally .......................................................................................................... 7:6
Past Victimization of Potential Juror...............................................................................7:6-7 Past Victimization of Potential Juror...............................................................................7:6-7
R-75 R-75
Peremptory Challenge....................................................................................... 7:8, 7:111-112 Peremptory Challenge....................................................................................... 7:8, 7:111-112

Strike for Cause ............................................................................................................................ 7:7 Strike for Cause ............................................................................................................................ 7:7
K K
KIDNAPPING TIER III OFFENSE.........................................................................................11:19 KIDNAPPING TIER III OFFENSE.........................................................................................11:19
L L
LURING A CHILD INTO A MOTOR VEHICLE OR STRUCTURE LURING A CHILD INTO A MOTOR VEHICLE OR STRUCTURE
Conduct Constituting lure .................................................................................................... 4:7 Conduct Constituting lure .................................................................................................... 4:7
Luring A Child, Generally ......................................................................................................... 4:5 Luring A Child, Generally ......................................................................................................... 4:5
Statutory Penalties ..........................................................................................................4:7, 9:42 Statutory Penalties ..........................................................................................................4:7, 9:42
LUSTFUL DISPOSITION EXCEPTION .................................................................................... 6:38 LUSTFUL DISPOSITION EXCEPTION .................................................................................... 6:38
M M
MEDICAL OR DOCTOR RECORDS..........................................................................7:63-64, 7:66 MEDICAL OR DOCTOR RECORDS..........................................................................7:63-64, 7:66
MENTAL HEALTH DEFENSES MENTAL HEALTH DEFENSES
Guilty But Mentally Ill............................................................................................................. 5:30 Guilty But Mentally Ill............................................................................................................. 5:30
Insanity Defense: Insanity Defense:
Burden of Proof ............................................................................................................... 5:28 Burden of Proof ............................................................................................................... 5:28
Generally ............................................................................................................................ 5:27 Generally ............................................................................................................................ 5:27
MNaghten Test ................................................................................................................ 5:29 MNaghten Test ................................................................................................................ 5:29
MINOR MINOR
Accused is a Minor ................................................................................................................... 2:22 Accused is a Minor ................................................................................................................... 2:22
Advertisement for Obscene Materials Minor is Included .................................... 4:33 Advertisement for Obscene Materials Minor is Included .................................... 4:33
Assessments Prepared Under SORNA ...........................................................................11:37 Assessments Prepared Under SORNA ...........................................................................11:37
Bail Conditions to Ensure Safety of Minor Victim ...................................................... 6:12 Bail Conditions to Ensure Safety of Minor Victim ...................................................... 6:12
Certification to Adult Criminal Court............................................................................... 2:26 Certification to Adult Criminal Court............................................................................... 2:26
Competency of Minor ..................................................................................................5:46, 7:13 Competency of Minor ..................................................................................................5:46, 7:13
Consent Not A Defense........................................................................................................... 3:25 Consent Not A Defense........................................................................................................... 3:25
Corruption of Minors .............................................................................................................. 4:16 Corruption of Minors .............................................................................................................. 4:16
Definition ....................................................................................................................... 4:30, 11:10 Definition ....................................................................................................................... 4:30, 11:10
Direct File Crimes Excluded from Juvenile Court Jurisdiction .............................. 2:24 Direct File Crimes Excluded from Juvenile Court Jurisdiction .............................. 2:24
Display of Obscene Materials to Minors ......................................................................... 4:32 Display of Obscene Materials to Minors ......................................................................... 4:32
Dissemination of Explicit Sexual Material to a Minor............................................... 4:34 Dissemination of Explicit Sexual Material to a Minor............................................... 4:34
Impeachment Minor Victim Prior Sexual Conduct ............................................. 7:17 Impeachment Minor Victim Prior Sexual Conduct ............................................. 7:17
R-76 R-76
Manufacture of Obscene Materials in which a Minor is Depicted ....................... 4:33 Manufacture of Obscene Materials in which a Minor is Depicted ....................... 4:33
Offenses See Child, Offenses Against Children Offenses See Child, Offenses Against Children
Prohibition of Disclosure of Name of Minor Victim .................................................. 2:32 Prohibition of Disclosure of Name of Minor Victim .................................................. 2:32
Production of Obscene Performance if a Minor is Included .................................. 4:34 Production of Obscene Performance if a Minor is Included .................................. 4:34
Prompt Report: Prompt Report:
Prompt Complaint Instruction Minor Victim ................................................. 7:35 Prompt Complaint Instruction Minor Victim ................................................. 7:35
Special Considerations Involving Minor Victims ................................................ 2:8 Special Considerations Involving Minor Victims ................................................ 2:8
Public Internet Website Minor Victim .......................................................................11:48 Public Internet Website Minor Victim .......................................................................11:48
Rape Shield Law Minor Victim ........................................................................................ 5:22 Rape Shield Law Minor Victim ........................................................................................ 5:22
Spousal Competence Exception Minor Victim ...................................................... 7:89 Spousal Competence Exception Minor Victim ...................................................... 7:89
Statute of Limitations Minority Tolling Provision .................................................. 5:41 Statute of Limitations Minority Tolling Provision .................................................. 5:41
Transmission of Sexually Explicit Images By Minor.................................................. 4:36 Transmission of Sexually Explicit Images By Minor.................................................. 4:36
MISTAKE AS TO AGE ................... 3:14-15, 3:19, 3:24-26. 4:21-23, 4:26, 5:37, 6:39, 7:92 MISTAKE AS TO AGE ................... 3:14-15, 3:19, 3:24-26. 4:21-23, 4:26, 5:37, 6:39, 7:92
MISTAKE OF FACT DEFENSE ...................................................................................................... 5:36 MISTAKE OF FACT DEFENSE ...................................................................................................... 5:36
MISTAKE OF LAW DEFENSE ....................................................................................................... 5:39 MISTAKE OF LAW DEFENSE ....................................................................................................... 5:39
N N
NAME NAME
Prohibition of Disclosure of Name of Minor Victim .................................................. 2:32 Prohibition of Disclosure of Name of Minor Victim .................................................. 2:32
NATIONAL CRIME VICTIMIZATION SURVEY..................................................... 1:10, 11:15 NATIONAL CRIME VICTIMIZATION SURVEY..................................................... 1:10, 11:15
NO CONTACT ORDERS .................................................................................................................... 6:19 NO CONTACT ORDERS .................................................................................................................... 6:19
O O
OBSCENE MATERIALS OBSCENE MATERIALS
Definition of Obscene Materials ......................................................................................... 4:35 Definition of Obscene Materials ......................................................................................... 4:35
Trial Court Determination .................................................................................................... 4:36 Trial Court Determination .................................................................................................... 4:36
Obscene Materials, Generally .............................................................................................. 4:32 Obscene Materials, Generally .............................................................................................. 4:32
Types of Obscene Materials ................................................................................................. 4:32 Types of Obscene Materials ................................................................................................. 4:32
Statutory Penalties ........................................................................................................... 4:32-34 Statutory Penalties ........................................................................................................... 4:32-34
OFFENSES REQUIRING REGISTRATION UNDER SORNA ................ 7:114, 11:17-19 OFFENSES REQUIRING REGISTRATION UNDER SORNA ................ 7:114, 11:17-19
OMNIBUS PRE-TRIAL MOTIONS.............................................................................................. 6:36 OMNIBUS PRE-TRIAL MOTIONS.............................................................................................. 6:36
P P
PENETRATION .............................................................................................................. 2:10, 2:19, 3:16 PENETRATION .............................................................................................................. 2:10, 2:19, 3:16
POST-CONVICTION FORENSIC DNA TESTING ................................................................ 8:28 POST-CONVICTION FORENSIC DNA TESTING ................................................................ 8:28
R-77 R-77
POST-CONVICTION RELIEF ACT ............................................................................................10:29 POST-CONVICTION RELIEF ACT ............................................................................................10:29

PRE-SENTENCE INVESTIGATION REPORT ...............................................................9:8, 9:60 PRE-SENTENCE INVESTIGATION REPORT ...............................................................9:8, 9:60
PRIVILEGES PRIVILEGES
Children and Youth Records ................................................................................................ 6:57 Children and Youth Records ................................................................................................ 6:57
Privileges, Generally................................................................................................................ 6:50 Privileges, Generally................................................................................................................ 6:50
Medial or Mental Health Professional Records ........................................................... 6:51 Medial or Mental Health Professional Records ........................................................... 6:51
Sexual Assault Counsel Privilege ............................................................................6:53, 7:93 Sexual Assault Counsel Privilege ............................................................................6:53, 7:93
Spousal Privilege: Spousal Privilege:
Abrogation in Child Protective Services Law...................................................7:109 Abrogation in Child Protective Services Law...................................................7:109
Spousal Competence .................................................................................................... 7:89 Spousal Competence .................................................................................................... 7:89
Spousal Privilege Confidential Communications .......................................7:107 Spousal Privilege Confidential Communications .......................................7:107
Spousal Privilege Testimonial Privilege .........................................................7:106 Spousal Privilege Testimonial Privilege .........................................................7:106
PRO SE DEFENDANT ........................................................................................................................ 7:19 PRO SE DEFENDANT ........................................................................................................................ 7:19
PROMPT COMPLAINT PROMPT COMPLAINT
Evidence to Explain Lack of Prompt Complaint: Evidence to Explain Lack of Prompt Complaint:
Evidence to Explain Lack of Prompt Complaint ............................................... 7:34 Evidence to Explain Lack of Prompt Complaint ............................................... 7:34
Prompt Complaint Testimony Disallowed .......................................................... 7:35 Prompt Complaint Testimony Disallowed .......................................................... 7:35
Prompt Complaint, Generally................................................................. 1:4, 1:16, 2:6, 7:31 Prompt Complaint, Generally................................................................. 1:4, 1:16, 2:6, 7:31
Prompt Complaint Instruction ...................................................................................2:6, 7:35 Prompt Complaint Instruction ...................................................................................2:6, 7:35
PROTECTION FROM ABUSE........................................................................................................ 6:23 PROTECTION FROM ABUSE........................................................................................................ 6:23
R R
RAPE RAPE
By Forcible Compulsion............................................................................................................ 3:9 By Forcible Compulsion............................................................................................................ 3:9
By Threat of Forcible Compulsion..................................................................................... 3:11 By Threat of Forcible Compulsion..................................................................................... 3:11
Nonstranger Rape .................................................................................................................... 1:10 Nonstranger Rape .................................................................................................................... 1:10
Of a Child ..............................................................................................................................1:8, 3:13 Of a Child ..............................................................................................................................1:8, 3:13
Of a Child Resulting in Serious Bodily Injury ............................................................... 3:14 Of a Child Resulting in Serious Bodily Injury ............................................................... 3:14
Rape, Definition................................................................................................................... 1:5, 1:7 Rape, Definition................................................................................................................... 1:5, 1:7
Rape, Generally..................................................................................................................3:8, 3:15 Rape, Generally..................................................................................................................3:8, 3:15
Rape Shield Law ................................................................................1:4, 2:4, 5:21, 6:44, 7:17 Rape Shield Law ................................................................................1:4, 2:4, 5:21, 6:44, 7:17
Statutory Penalties ................................................................................................3:16, 9:32-33 Statutory Penalties ................................................................................................3:16, 9:32-33
When the Assailant Has Impaired the Complainants Power to Resist............. 3:13 When the Assailant Has Impaired the Complainants Power to Resist............. 3:13
When the Complainant is Unconscious or Unaware ................................................. 3:12 When the Complainant is Unconscious or Unaware ................................................. 3:12
R-78 R-78
When the Mental Disability Renders the Complainant Incapable of Consent .....3:13 When the Mental Disability Renders the Complainant Incapable of Consent .....3:13
RAPE AND SEXUAL ASSAULT: A RENEWED CALL TO ACTION............................ 1:11 RAPE AND SEXUAL ASSAULT: A RENEWED CALL TO ACTION............................ 1:11
RAPE KIT RAPE KIT
Objective Findings or Opinions .......................................................................................... 8:37 Objective Findings or Opinions .......................................................................................... 8:37
Rape Kit .............................................................................................................................7:67, 8:34 Rape Kit .............................................................................................................................7:67, 8:34
RAPE SHIELD LAW RAPE SHIELD LAW
Evidence of Motive, Prejudice or Bias ............................................................................. 6:47 Evidence of Motive, Prejudice or Bias ............................................................................. 6:47
Evidence that Negates the Sexual Conduct ................................................................... 6:49 Evidence that Negates the Sexual Conduct ................................................................... 6:49
In-Camera Hearing .......................................................................................................6:48, 7:17 In-Camera Hearing .......................................................................................................6:48, 7:17
Rape Shield Law, Generally ..........................................................1:4, 2:4, 5:21, 6:44, 7:17 Rape Shield Law, Generally ..........................................................1:4, 2:4, 5:21, 6:44, 7:17
RAPE TRAUMA SYNDROME......................................................................1:21, 3:10, 8:14, 8:19 RAPE TRAUMA SYNDROME......................................................................1:21, 3:10, 8:14, 8:19
RES GESTAE EXCEPTION.............................................................................................7:41, 7:57-58 RES GESTAE EXCEPTION.............................................................................................7:41, 7:57-58
REGISTRATION AND REPORTING REQUIREMENTS, SORNA ....................... 9:25-26 REGISTRATION AND REPORTING REQUIREMENTS, SORNA ....................... 9:25-26
RESISTANCE NOT NECESSARY ................................................................................3:16, 7:37-38 RESISTANCE NOT NECESSARY ................................................................................3:16, 7:37-38
S S
SENTENCING SENTENCING
Aggravated Indecent Assault ............................................................................................... 9:35 Aggravated Indecent Assault ............................................................................................... 9:35
Allocution Defendants Right Prior to Sentencing .................................................. 9:61 Allocution Defendants Right Prior to Sentencing .................................................. 9:61
Corruption of Minors Sexual Nature ............................................................................ 9:39 Corruption of Minors Sexual Nature ............................................................................ 9:39
Guidelines Guidelines
Departure from Guidelines.............................................................................9:29, 9:53 Departure from Guidelines.............................................................................9:29, 9:53
Sentencing Guidelines ......................................................................................9:28, 9:52 Sentencing Guidelines ......................................................................................9:28, 9:52
Hearing ......................................................................................................................................... 9:60 Hearing ......................................................................................................................................... 9:60
Incest ............................................................................................................................................. 9:39 Incest ............................................................................................................................................. 9:39
Inchoate Crimes ........................................................................................................................ 9:43 Inchoate Crimes ........................................................................................................................ 9:43
Indecent Assault ....................................................................................................................... 9:36 Indecent Assault ....................................................................................................................... 9:36
Indecent Exposure ................................................................................................................... 9:37 Indecent Exposure ................................................................................................................... 9:37
Institutional Sexual Assault ................................................................................................. 9:34 Institutional Sexual Assault ................................................................................................. 9:34
Involuntary Deviate Sexual Intercourse ......................................................................... 9:34 Involuntary Deviate Sexual Intercourse ......................................................................... 9:34
Mandatory Sentences ...................................................................................................... 9:43-51 Mandatory Sentences ...................................................................................................... 9:43-51
Maximum Sentencing Provisions ....................................................................9:30-43, 9:65 Maximum Sentencing Provisions ....................................................................9:30-43, 9:65
Pre-Sentence Investigation Report ...........................................................................9:8, 9:60 Pre-Sentence Investigation Report ...........................................................................9:8, 9:60
Rape ........................................................................................................................................ 9:32-33 Rape ........................................................................................................................................ 9:32-33
R-79 R-79
Registration and Reporting Requirements, SORNA..... 9:26, 11:13, 11:19, 11:56-67 Registration and Reporting Requirements, SORNA..... 9:26, 11:13, 11:19, 11:56-67
Scheduling of .............................................................................................................................. 9:15 Scheduling of .............................................................................................................................. 9:15
Sentencing, Generally ............................................................................................................. 9:27 Sentencing, Generally ............................................................................................................. 9:27
Sexual Abuse of Children....................................................................................................... 9:39 Sexual Abuse of Children....................................................................................................... 9:39
Sexual Assault ............................................................................................................................ 9:34 Sexual Assault ............................................................................................................................ 9:34
Sexual Exploitation of Children .......................................................................................... 9:41 Sexual Exploitation of Children .......................................................................................... 9:41
Sexual Intercourse with Animal ......................................................................................... 9:38 Sexual Intercourse with Animal ......................................................................................... 9:38
SORNA, Sentencing Court Responsibilities .....................9:17, 9:26, 11:34, 11:56-67 SORNA, Sentencing Court Responsibilities .....................9:17, 9:26, 11:34, 11:56-67
Statutory Sexual Assault........................................................................................................ 9:33 Statutory Sexual Assault........................................................................................................ 9:33
Victims Right to Speak at Sentencing Hearing............................................................ 9:62 Victims Right to Speak at Sentencing Hearing............................................................ 9:62
SERIOUS BODILY INJURY SERIOUS BODILY INJURY
Serious Bodily Injury, Generally .........................................................2:17, 2:18, 2:19, 3:9 Serious Bodily Injury, Generally .........................................................2:17, 2:18, 2:19, 3:9
Serious Bodily Injury, Minor Victim 2:29, 2:30, 3:14, 3:15, 3:17, 3:21, 3:25, 3:26 Serious Bodily Injury, Minor Victim 2:29, 2:30, 3:14, 3:15, 3:17, 3:21, 3:25, 3:26
Serious Bodily Injury, Sentencing ........................................................... 9:33, 9:34, 9:44 Serious Bodily Injury, Sentencing ........................................................... 9:33, 9:34, 9:44
SEXTING ................................................................................................................................................... 4:36 SEXTING ................................................................................................................................................... 4:36
SEXUAL ABUSE OF CHILDREN SEXUAL ABUSE OF CHILDREN
Sex Offender Registration ....................................................................................... 4:26, 11:18 Sex Offender Registration ....................................................................................... 4:26, 11:18
Sexual Abuse of Children, Generally................................................................................. 4:22 Sexual Abuse of Children, Generally................................................................................. 4:22
Statutory Penalties ................................................................................................4:22-24, 9:39 Statutory Penalties ................................................................................................4:22-24, 9:39
SEXUAL ASSAULT SEXUAL ASSAULT
Institutional Sexual Assault, Generally ........................................................................... 3:28 Institutional Sexual Assault, Generally ........................................................................... 3:28
Sexual Assault, Definition ....................................................................................1:5, 1:8, 3:27 Sexual Assault, Definition ....................................................................................1:5, 1:8, 3:27
Sexual Assault, Generally ...................................................................................................... 3:27 Sexual Assault, Generally ...................................................................................................... 3:27
SEXUAL ASSAULT BY A SPORTS OFFICIAL OR VOLUNTEER SEXUAL ASSAULT BY A SPORTS OFFICIAL OR VOLUNTEER
Sexual Assault by a Sports Official or Volunteer .................................. 2:29, 4:40, 9:42 Sexual Assault by a Sports Official or Volunteer .................................. 2:29, 4:40, 9:42
Statutory Penalties ........................................................................................... 4:40, 4:41, 9:43 Statutory Penalties ........................................................................................... 4:40, 4:41, 9:43
SEXUAL ASSAULT COUNSELOR PRIVILEGE SEXUAL ASSAULT COUNSELOR PRIVILEGE
Sexual Assault Counselor Privilege .......................................................................6:53, 7:93 Sexual Assault Counselor Privilege .......................................................................6:53, 7:93
Waiver ........................................................................................................................................... 7:95 Waiver ........................................................................................................................................... 7:95
SEXUAL ASSAULT EVIDENCE COLLECTION KIT............................................................ 8:35 SEXUAL ASSAULT EVIDENCE COLLECTION KIT............................................................ 8:35
SEXUAL EXPLOITATION OF CHILDREN SEXUAL EXPLOITATION OF CHILDREN
Sexual Exploitation of Children, Generally .................................................................... 4:30 Sexual Exploitation of Children, Generally .................................................................... 4:30
Sex Offender Registration ..............................................................4:31, 11:5, 11:18, 11:69 Sex Offender Registration ..............................................................4:31, 11:5, 11:18, 11:69
R-80 R-80
SEXUAL INTERCOURSE .................................................................................................................. 2:19 SEXUAL INTERCOURSE .................................................................................................................. 2:19

SEXUAL INTERCOURSE WITH ANIMAL .............................................................................. 3:43 SEXUAL INTERCOURSE WITH ANIMAL .............................................................................. 3:43
SEXUAL VIOLENCE ............................................................................................................................... 1:9 SEXUAL VIOLENCE ............................................................................................................................... 1:9
SEXUAL VIOLENCE VICTIM PROTECTION ACT ............................................................. 6:19 SEXUAL VIOLENCE VICTIM PROTECTION ACT ............................................................. 6:19
SEXUALLY EXPLICIT MATERIALS SEXUALLY EXPLICIT MATERIALS
Admissibility ............................................................................................................................7:104 Admissibility ............................................................................................................................7:104
Probative Value .......................................................................................................................7:104 Probative Value .......................................................................................................................7:104
Sexually Explicit Materials, Generally............................................................................7:103 Sexually Explicit Materials, Generally............................................................................7:103
SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA) SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA)
Appellate Review ...................................................................................................................... 9:27 Appellate Review ...................................................................................................................... 9:27
Assessments ................................................................................................................. 9:22, 11:37 Assessments ................................................................................................................. 9:22, 11:37
Burden of Proof ........................................................................................................... 9:24, 11:40 Burden of Proof ........................................................................................................... 9:24, 11:40
Definitions ................................................................................................................................... 11:7 Definitions ................................................................................................................................... 11:7
Ex Post Facto Considerations ....................................................11:7, 11:23, 11:24, 11:27 Ex Post Facto Considerations ....................................................11:7, 11:23, 11:24, 11:27
Listing of Offenses in Tier System ............................................................ 7:114, 11:17-19 Listing of Offenses in Tier System ............................................................ 7:114, 11:17-19
Megans Law, History .......................................................................................................... 11:4-7 Megans Law, History .......................................................................................................... 11:4-7
Offenses Which Require Registration ...................................................... 7:114, 11:17-19 Offenses Which Require Registration ...................................................... 7:114, 11:17-19
Periods of Registration ..................................................................................... 9:25-26, 11:19 Periods of Registration ..................................................................................... 9:25-26, 11:19
Public Internet Website .......................................................................................................11:46 Public Internet Website .......................................................................................................11:46
Registration: Registration:
Individuals Who Must Register .............................................................................11:13 Individuals Who Must Register .............................................................................11:13
Periods of Registration........................................................................... 9:25-26, 11:19 Periods of Registration........................................................................... 9:25-26, 11:19
Periods of Registration Enforcement of Plea Agreement .......................11:25 Periods of Registration Enforcement of Plea Agreement .......................11:25
Registration, Generally .................................................................................. 9:26, 11:12 Registration, Generally .................................................................................. 9:26, 11:12
Registration Procedures .................................................................................... 11:11.28 Registration Procedures .................................................................................... 11:11.28
Reporting Requirements .................................................................................. 9:26, 11:56-67 Reporting Requirements .................................................................................. 9:26, 11:56-67
Sentencing Requirements ...........................................................9:26, 11:38-42, 11:56-67 Sentencing Requirements ...........................................................9:26, 11:38-42, 11:56-67
Sexual Offender, Definition ................................................................................................... 11:7 Sexual Offender, Definition ................................................................................................... 11:7
Sexually Violent Predator Assessment..................................................9:17, 9:22, 11:37 Sexually Violent Predator Assessment..................................................9:17, 9:22, 11:37
Sexually Violent Predator, Counseling...........................................................................11:50 Sexually Violent Predator, Counseling...........................................................................11:50
Sexually Violent Predator, Generally ............................. 9:18, 9:22, 11:7, 11:37, 11:65 Sexually Violent Predator, Generally ............................. 9:18, 9:22, 11:7, 11:37, 11:65
SORNA, Generally and History ............................................................................................ 11:7 SORNA, Generally and History ............................................................................................ 11:7
Standard of Review Clear and Convincing Evidence ............................ 11:38, 11:40 Standard of Review Clear and Convincing Evidence ............................ 11:38, 11:40
Tier System: Tier System:
Tier System, Generally ...................................................................... 7:114, 9:19, 11:17 Tier System, Generally ...................................................................... 7:114, 9:19, 11:17
Tier I Sexual Offenses................................................................................... 7:114, 11:17 Tier I Sexual Offenses................................................................................... 7:114, 11:17
R-81 R-81
Tier II Sexual Offenses ................................................................................. 7:114, 11:18 Tier II Sexual Offenses ................................................................................. 7:114, 11:18
Tier III Sexual Offenses ............................................................................... 7:115, 11:18 Tier III Sexual Offenses ............................................................................... 7:115, 11:18
SEXUAL OFFENSES and THE TIER SYSTEM ...................................................................7:114 SEXUAL OFFENSES and THE TIER SYSTEM ...................................................................7:114
SEXUALLY VIOLENT PREDATOR SEXUALLY VIOLENT PREDATOR
Appellate Review of SVP Status ................................................................9:24, 9:27, 11:42 Appellate Review of SVP Status ................................................................9:24, 9:27, 11:42
Burden of Proof ............................................................................................. 9:24, 11:38, 11:40 Burden of Proof ............................................................................................. 9:24, 11:38, 11:40
Sexually Violent Predator Assessment...................................................9:17, 9:22, 11:37 Sexually Violent Predator Assessment...................................................9:17, 9:22, 11:37
Sexually Violent Predator, Counseling...........................................................................11:50 Sexually Violent Predator, Counseling...........................................................................11:50
Sexually Violent Predator, Generally ............................. 9:18, 9:22, 11:7, 11:37, 11:65 Sexually Violent Predator, Generally ............................. 9:18, 9:22, 11:7, 11:37, 11:65
SOLICITATION ....................................................................................................................3:43-44, 4:41 SOLICITATION ....................................................................................................................3:43-44, 4:41
SOLICITATION OF A MINOR........................................................................................................ 4:43 SOLICITATION OF A MINOR........................................................................................................ 4:43
SPOUSAL PRIVILEGE SPOUSAL PRIVILEGE
Abrogation in Child Protective Services Law .............................................................7:109 Abrogation in Child Protective Services Law .............................................................7:109
Spousal Competence ............................................................................................................... 7:89 Spousal Competence ............................................................................................................... 7:89
Spousal Privilege Confidential Communications ..................................................7:107 Spousal Privilege Confidential Communications ..................................................7:107
Spousal Privilege Testimonial Privilege ....................................................................7:106 Spousal Privilege Testimonial Privilege ....................................................................7:106
STAGES OF A CRIMINAL TRIAL .....................................................................................7:6, 7:111 STAGES OF A CRIMINAL TRIAL .....................................................................................7:6, 7:111
STATUTE OF LIMITATIONS STATUTE OF LIMITATIONS
Commencement of Limitations Period ........................................................................... 5:43 Commencement of Limitations Period ........................................................................... 5:43
Commencement of Prosecution ......................................................................................... 5:44 Commencement of Prosecution ......................................................................................... 5:44
Minority Tolling Provision.................................................................................................... 5:41 Minority Tolling Provision.................................................................................................... 5:41
Particular Sex Offenses .......................................................................................................... 5:40 Particular Sex Offenses .......................................................................................................... 5:40
Statute of Limitations, Generally ....................................................................................... 5:39 Statute of Limitations, Generally ....................................................................................... 5:39
Tolling ............................................................................................................................................ 5:42 Tolling ............................................................................................................................................ 5:42
STATUTORY SEXUAL ASSAULT STATUTORY SEXUAL ASSAULT
Statutory Sexual Assault, Generally.................................................................................. 3:17 Statutory Sexual Assault, Generally.................................................................................. 3:17
SUGGESTED JURY INSTRUCTIONS ................................ 3:13, 5:31-32, 5:35, 7:113, 8:13, SUGGESTED JURY INSTRUCTIONS ................................ 3:13, 5:31-32, 5:35, 7:113, 8:13,
SUSPECTED CHILD ABUSE SUSPECTED CHILD ABUSE
Official Preventing or Interfering with Report of Suspected Child abuse ........ 4:14 Official Preventing or Interfering with Report of Suspected Child abuse ........ 4:14
T T
TAINT TAINT
Generally ...........................................................................................................................5:46, 7:14 Generally ...........................................................................................................................5:46, 7:14
R-82 R-82
TENDER YEARS EXCEPTION TENDER YEARS EXCEPTION

Generally ...................................................................................................................................... 7:78 Generally ...................................................................................................................................... 7:78
Nontestimonial Statements ................................................................................................. 7:82 Nontestimonial Statements ................................................................................................. 7:82
Notice Requirement ................................................................................................................ 7:85 Notice Requirement ................................................................................................................ 7:85
Primary Purpose Test ............................................................................................................. 7:84 Primary Purpose Test ............................................................................................................. 7:84
Sufficient Indicia of Reliability............................................................................................ 7:85 Sufficient Indicia of Reliability............................................................................................ 7:85
Testimonial Evidence.............................................................................................................. 7:82 Testimonial Evidence.............................................................................................................. 7:82
TERMS COMMONLY FOUND IN SEXUAL OFFENSES TERMS COMMONLY FOUND IN SEXUAL OFFENSES
Child .......................................................................................................................................2:22, 4:6 Child .......................................................................................................................................2:22, 4:6
Complainant .................................................................................................................................. 2:3 Complainant .................................................................................................................................. 2:3
Course of Conduct .................................................................................................................... 4:15 Course of Conduct .................................................................................................................... 4:15
Deviate Sexual Intercourse ..................................................................................................... 2:9 Deviate Sexual Intercourse ..................................................................................................... 2:9
Forcible Compulsion ............................................................................................................... 2:11 Forcible Compulsion ............................................................................................................... 2:11
Indecent Contact.....................................................................................................2:15, 4:22-24 Indecent Contact.....................................................................................................2:15, 4:22-24
Minor ..................................................................................................................................4:30, 4:39 Minor ..................................................................................................................................4:30, 4:39
Prompt Complaint....................................................................................................................... 2:6 Prompt Complaint....................................................................................................................... 2:6
Resistance .................................................................................................................................... 2:14 Resistance .................................................................................................................................... 2:14
Serious Bodily Injury .............................................................................................................. 2:17 Serious Bodily Injury .............................................................................................................. 2:17
Sexual Intercourse ................................................................................................................... 2:19 Sexual Intercourse ................................................................................................................... 2:19
THREAT OF VIOLENCE TO VICTIM OR WITNESS ........................................................ 7:13 THREAT OF VIOLENCE TO VICTIM OR WITNESS ........................................................ 7:13
TIER SYSTEM, SEXUAL OFFENSES.............................................................. 7:114, 9:19, 11:17 TIER SYSTEM, SEXUAL OFFENSES.............................................................. 7:114, 9:19, 11:17
TRANSMISSION OF SEXUALLY EXPLICIT IMAGES BY MINOR ............................ 4:36 TRANSMISSION OF SEXUALLY EXPLICIT IMAGES BY MINOR ............................ 4:36
U U
UNLAWFUL CONTACT WITH MINOR UNLAWFUL CONTACT WITH MINOR
Unlawful Contact with Minor, Generally......................................................................... 4:28 Unlawful Contact with Minor, Generally......................................................................... 4:28
Sex Offender Registration ....................................................................................... 4:30, 11:18 Sex Offender Registration ....................................................................................... 4:30, 11:18
USE OF WEAPONS.............................................................................................................................. 1:11 USE OF WEAPONS.............................................................................................................................. 1:11
V V
VENEREAL DISEASE TESTING................................................................................................... 6:25 VENEREAL DISEASE TESTING................................................................................................... 6:25
VICTIM VICTIM
Cross-examination by Pro Se Defendant ........................................................................ 7:19 Cross-examination by Pro Se Defendant ........................................................................ 7:19
Psychological Reactions ........................................................................................................ 1:20 Psychological Reactions ........................................................................................................ 1:20
R-83 R-83
Threats of Violence to Victim or Witness ...........................................................7:13, 7:43 Threats of Violence to Victim or Witness ...........................................................7:13, 7:43
Victim Impact Statement ...................................................................................................... 9:11 Victim Impact Statement ...................................................................................................... 9:11
Victim Notification under SORNA ...................................................................................11:43 Victim Notification under SORNA ...................................................................................11:43
Victim Responses and Behaviors: Victim Responses and Behaviors:
Prohibition on Opinion Regarding Credibility ........................................7:20, 7:23 Prohibition on Opinion Regarding Credibility ........................................7:20, 7:23
Victim Responses and Behaviors, Generally ....................................................... 7:20 Victim Responses and Behaviors, Generally ....................................................... 7:20
Victims Right to Speak at Sentencing Hearing............................................................ 9:61 Victims Right to Speak at Sentencing Hearing............................................................ 9:61
Victims Rights ........................................................................................................................... 1:27 Victims Rights ........................................................................................................................... 1:27
Victims Testimony as to Embarrassing or Lurid Details ........................................ 7:12 Victims Testimony as to Embarrassing or Lurid Details ........................................ 7:12
VICTIM ADVOCATE ........................................................................................................................... 1:30 VICTIM ADVOCATE ........................................................................................................................... 1:30
VOYEURISM............................................................................................................................................ 3:41 VOYEURISM............................................................................................................................................ 3:41
W W
WAIVER OF RIGHT TO COUNSEL ............................................................................................ 7:19 WAIVER OF RIGHT TO COUNSEL ............................................................................................ 7:19
WEAPONS ................................................................................................................................................ 1:11 WEAPONS ................................................................................................................................................ 1:11
R-84 R-84

Sexual Violence Bench Book - 000723

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Sexual Violence Bench Book - 000723

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Pennsylvania Pennsylvania

Crimes of Sexual Violence Crimes of Sexual Violence

The Honorable Jack A. Panella The Honorable Jack A. Panella

Benchbook Advisory Committee Benchbook Advisory Committee

SECTION FOUR: Resources SECTION FOUR: Resources

THE DYNAMICS OF THE DYNAMICS OF

Chapter One Table of Contents Chapter One Table of Contents

Chapter One Chapter One

1.1 PURPOSE OF THE BENCHBOOK 1.1 PURPOSE OF THE BENCHBOOK

SECTION FOUR: Resources SECTION FOUR: Resources

Chapter 6: Pretrial Chapter 6: Pretrial

No Corroboration Required No Corroboration Required

The Prompt Complaint Rule The Prompt Complaint Rule

The Rape Shield Law The Rape Shield Law

1.2 CHAPTER OVERVIEW 1.2 CHAPTER OVERVIEW

whenever there is a lack of consent,4 whenever there is a lack of consent,4

18 Pa.Cons.Stat.Ann. PA.II, Art. B, Ch. 31 18 Pa.Cons.Stat.Ann. PA.II, Art. B, Ch. 31

SUBCHAPTER A. GENERAL PROVISIONS SUBCHAPTER A. GENERAL PROVISIONS

SUBCHAPTER B. DEFINITION OF OFFENSES SUBCHAPTER B. DEFINITION OF OFFENSES

3122.1 Statutory Sexual Assault 3122.1 Statutory Sexual Assault

SUBCHAPTER C. LOSS OF PROPERTY RIGHTS SUBCHAPTER C. LOSS OF PROPERTY RIGHTS

(1) by forcible compulsion; (1) by forcible compulsion;

(1) by forcible compulsion; (1) by forcible compulsion;

B. DEFINING SEXUAL VIOLENCE B. DEFINING SEXUAL VIOLENCE

1. Nonstranger Rape 1. Nonstranger Rape

2. Use of Weapons 2. Use of Weapons

3. Victim Injury 3. Victim Injury

5. False Reporting 5. False Reporting

6. Victim Statistics 6. Victim Statistics

7. Perpetrator Statistics 7. Perpetrator Statistics

8. Delay in Reporting 8. Delay in Reporting

2. Rape Trauma Syndrome 2. Rape Trauma Syndrome

3. Acute Stress Disorder 3. Acute Stress Disorder

4. Post Traumatic Stress Disorder 4. Post Traumatic Stress Disorder

sustain the jurys verdict. sustain the jurys verdict.

(b) Irritability or outbursts of anger. (b) Irritability or outbursts of anger.

(c) Difficulty concentrating. (c) Difficulty concentrating.

(d) Hypervigilance. (d) Hypervigilance.

(e) Exaggerated startle response. (e) Exaggerated startle response.

1.5 VICTIMS RIGHTS 1.5 VICTIMS RIGHTS

(ii) Be provided with: (ii) Be provided with:

GENERAL PROVISIONS OF GENERAL PROVISIONS OF

Chapter Two Table of Contents Chapter Two Table of Contents

D. Indecent Contact ............................................................................................................ 15 D. Indecent Contact ............................................................................................................ 15

Chapter Two Chapter Two

2.1 CHAPTER OVERVIEW 2.1 CHAPTER OVERVIEW

2.2 DEFINITIONS 2.2 DEFINITIONS

1. Statutory Definition 1. Statutory Definition

18 Pa.Cons.stat.ann. 3101. Definitions 18 Pa.Cons.stat.ann. 3101. Definitions

2. Credibility of Complainant 2. Credibility of Complainant

18 Pa.Cons.stat.ann. 3106. Testimony of complainants 18 Pa.Cons.stat.ann. 3106. Testimony of complainants

(a) Corroboration (a) Corroboration

3. Rape Shield Law3 3. Rape Shield Law3

(b) Prior Sexual Assault (b) Prior Sexual Assault

4. Prompt Report6 4. Prompt Report6

18 Pa.Cons.Stat.Ann. 3105. Prompt complaint 18 Pa.Cons.Stat.Ann. 3105. Prompt complaint

The age of the victim; The age of the victim;

B. Deviate Sexual Intercourse B. Deviate Sexual Intercourse

1. Statutory Definition 1. Statutory Definition

(a) Oral Penetration Sufficient (a) Oral Penetration Sufficient

C. Forcible Compulsion C. Forcible Compulsion

1. Statutory Definition 1. Statutory Definition

2. Moral, Psychological or Intellectual Force 2. Moral, Psychological or Intellectual Force

3. Actual Force 3. Actual Force